Investments. None of the Parent, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other than: (a) Permitted Investments; (b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date); (c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment; (d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above; (e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above; (f) Investments in the form of Hedge Agreements permitted under Section 6.12; (g) Permitted Acquisitions; (h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business; (i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business; (j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation; (k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04; (l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business; (m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time; (n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and (o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor).
Appears in 2 contracts
Samples: Continuing Covenant Agreement, Continuing Covenant Agreement (SemGroup Corp)
Investments. None The Borrower will not, nor will it permit any of the Parent, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdits Subsidiaries to, make or otherwise suffer permit to exist remain outstanding any Investment in any other Person, or make any Acquisition, other thanInvestments except:
(a) Investments outstanding on the Effective Date in amounts which do not exceed $10,000,000 with respect to each individual Investment or that are otherwise set forth in Part B of Schedule III;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(bd) Investments existing on by the Closing Date Borrower and its Wholly-Owned Subsidiaries in the Borrower and its Wholly-Owned Subsidiaries (excluding Foreign Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto ) (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 any Investment in the Vincor Acquisition Entities in connection with the Transactions and the repayment or prepayment of Indebtedness under the Vincor Agreements and (y) 15% the reclassification or conversion of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant any such Investments to Section 5.04(a) debt or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor equity or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) abovecombination thereof);
(e) Guarantees Investments by the Parent, Borrower and its Wholly-Owned Subsidiaries in Foreign Subsidiaries (including (x) any Investment in the Obligor Vincor Acquisition Entities in connection with the Transactions and the repayment or any other Restricted Subsidiary prepayment of Indebtedness under the Vincor Agreements and (y) the reclassification or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result conversion of any such Person being a joint and several co-applicant with respect Investments to debt or equity or any combination thereof); provided, that if such Investments consist of loans or advances by the Borrower to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Foreign Subsidiary, such Foreign Subsidiary shall not Guarantee any Material Indebtedness unless execute and deliver an Intercompany Note evidencing such Restricted Subsidiary has Guaranteed Investments and the Obligations pursuant to Borrower shall comply with the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations requirements of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) aboveSection 6.09(f);
(f) Investments in the form consisting of Hedge Agreements permitted under Section 6.12;
(gi) Permitted Acquisitions;
(h) Any payrollsecurity deposits with utilities, travel, entertainment, relocation lessors and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are other like Persons made in the ordinary course of business;
, (iii) Investments received pledges and deposits made in connection the ordinary course of business in compliance with workers’ compensation, unemployment insurance and other social security laws or regulations or (iii) deposits to secure the bankruptcy performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance or reorganization of, or settlement indemnity bonds and other obligations of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Membera like nature, in each case in the ordinary course of business;
(g) Investments by the Borrower and its Subsidiaries in Joint Venture Entities (and Investments by Joint Venture Entities in other Persons);
(h) acquisitions permitted pursuant to Section 7.05;
(i) Hedging Agreements entered into in the ordinary course of business and not for speculative purposes;
(j) Investments held (x) by the Borrower and its Wholly-Owned Subsidiaries in Foreign Subsidiaries that are Wholly-Owned Subsidiaries of the Borrower and (y) by Foreign Subsidiaries in other Foreign Subsidiaries of the Borrower that are Wholly-Owned Subsidiaries of the Borrower, made directly or indirectly (including through any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07Obligor), in each case, so long as such Investments were not made in contemplation of or case in connection with the corporate reorganization or restructuring of Vincor and its Subsidiaries after the Effective Date (provided that if the ownership interests of any such acquisitionForeign Subsidiary (or any parent Foreign Subsidiary thereof) whose assets are the subject such Investment are required to be pledged to the Administrative Agent pursuant to Section 6.09, merger or consolidation and were in existence on the date requisite amount of ownership interests of the Foreign Subsidiary that is the recipient of such acquisition, merger Investment (or consolidationthe applicable parent Foreign Subsidiary thereof) shall also be pledged to the Administrative Agent as provided in Section 6.09 following consummation of such reorganization);
(k) additional Investments made as a result by the Borrower or any of its Subsidiaries not otherwise permitted by the receipt foregoing paragraphs of noncash consideration from this Section up to but not exceeding U.S.$100,000,000 in the aggregate at any Disposition of any asset in compliance with Section 6.04;one time outstanding; and
(l) Investments consisting of any note issued by a Foreign Subsidiary to the Borrower or any Subsidiary Guarantor so long as (i) extensions no cash or other Property shall be paid or otherwise transferred by the Borrower or such Subsidiary Guarantor to any Foreign Subsidiary in exchange for the issuance of trade credit, such note and (ii) deposits made such note shall be payable solely in connection with the purchase shares of goods or services or the performance capital stock of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the a Subsidiary. The aggregate amount of such an Investment or the aggregate amount at any one time outstanding for purposes of all consideration paid in connection with such acquisition clauses (determined as set forth in clause e), (g) of the definition of “Permitted Acquisition”and (j) above shall not exceed an amount be deemed to be equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant cash, together with the aggregate fair market value of Property, loaned, advanced, contributed, transferred or otherwise invested that gives rise to this clause (m) subsequent to the Closing Date as of such time and Investment minus (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) dividends, distributions or other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount payments received in cash in respect of such Investment or any sale or other disposition thereof (subject to the aggregate terms of Section 7.04); the amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) an Investment shall not exceed the Available Amount at such time (in each case, as certified any event be reduced by a Responsible Officer reason of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event any write-off of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment nor increased by any increase in the amount of earnings retained in the Person in which such Investment is made that have not been dividended, distributed or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)otherwise paid out.
Appears in 2 contracts
Samples: Credit Agreement (Constellation Brands, Inc.), Credit Agreement (Constellation Brands, Inc.)
Investments. None of the ParentMake, the Obligor assume or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other PersonInvestments, or make any Acquisition, other thanexcept:
(a) Permitted InvestmentsInvestments held by the Borrower or such Subsidiary in the form of cash equivalents or short-term marketable debt securities in the ordinary course of business pursuant to the Borrower’s usual and customary cash management policies and procedures;
(b) Investments existing on the Closing Date in Subsidiariesadvances to officers, directors and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries employees of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to Borrower and Subsidiaries made in accordance with the extent required by the definition of the term “Collateral Borrower’s usual and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant customary practice with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except thereto for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the analogous ordinary course of businessbusiness purposes;
(c) Investments of (i) Investments received the Borrower in connection with any Guarantor, (ii) any Subsidiary in the bankruptcy Borrower or reorganization ofin a Guarantor, or settlement of delinquent accounts and disputes with, customers and suppliers, or (iii) any Subsidiary that is not a Guarantor in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of businessother Subsidiary that is not a Guarantor;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(ld) Investments consisting of (i) extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, credit in the ordinary course of business, and (iii) notes receivable of, Investments received in satisfaction or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in the ordinary course of businessorder to prevent or limit loss;
(me) other Guarantees permitted by Section 7.03;
(f) Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all constituting noncash consideration paid received in connection with such acquisition (determined as set forth in clause a Disposition permitted by Section 7.05;
(g) Investments existing on the Closing Date;
(h) Investments resulting from the transfer of Permitted Receivables and related assets to a Subsidiary, and the definition of “sale thereof by such Subsidiary, in each case pursuant to a Permitted Acquisition”Receivables Purchase Facility;
(i) shall not exceed Investments incurred in order to consummate an amount equal to Acquisition so long as (i) the Available Equity Amount at Person to be (or whose assets are to be) acquired does not oppose such timeAcquisition, minus (ii) the sum line or lines of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage business of the Available Equity Amount subsequent Person to the Closing Date as of such time;
be acquired are a Permitted Business, (n) other Investments and other acquisitions; provided that (Aiii) no Specified Default or Event of Default shall have occurred and be continuing either immediately prior to or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisitionAcquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis and (iv) such Acquisition is undertaken in each caseaccordance with all applicable Laws and regulatory approvals;
(j) other Investments, as certified by a Responsible Officer including Investments of the Obligor)Borrower or any Guarantor in Subsidiaries that are not Guarantors, in an aggregate amount at any time outstanding not to exceed 10% of Consolidated Total Assets.
Appears in 2 contracts
Samples: Credit Agreement (Precision Castparts Corp), Credit Agreement (Precision Castparts Corp)
Investments. None of the Parent, the Obligor Make or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer permit to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Permitted Investments;
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(ci) investments by the Parent, the Obligor Borrower and the other Restricted Subsidiaries existing on the date hereof in the Equity Interests of the Borrower and the Subsidiaries and (ii) additional investments by the Borrower and the Subsidiaries in the Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted of the Borrower and the Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (iiA) any such Equity Interests (other than Excluded Assets) held by a Loan Party shall be pledged pledged, subject to the extent required by the definition terms of the term “Guarantee and Collateral and Guarantee Requirement” Agreement and (iiiB) investments made after the aggregate amount of such investments Closing Date by the Loan Parties in, and loans and advances made after the Closing Date by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all determined without regard to any write-downs or write-offs of such investments, loansloans and advances) shall be limited to the amount necessary to satisfy regulatory requirements of such non-Loan Party Subsidiaries (or any Subsidiaries of such non-Loan Party Subsidiaries) promulgated by any Applicable Insurance Regulatory Authority or any reasonably anticipated regulatory requirements of such non-Loan Party Subsidiaries (or their Subsidiaries), advances and Guarantees existing on including any such regulatory requirements in connection with the date hereof and permitted by clause formation of any new non-Loan Party Subsidiaries; provided, further that without the prior written consent of the Required Lenders (such consent not to be unreasonably withheld or delayed), no investments shall be made in any new non-Loan Party Subsidiaries after the Springing Maturity Exercise Date other than pursuant to a binding agreement executed prior to the Springing Maturity Exercise Date;
(b) above(i) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 Permitted Investments and (yii) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant with respect to Section 5.04(a) any Regulated Insurance Subsidiary, debt securities or 5.04(b) prior to the date of such Investmentdebt instruments with an Investment Grade Rating;
(dc) loans or advances made by the Parent, Borrower to any Subsidiary and made by any Subsidiary to the Obligor Borrower or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged to the Indebtedness resulting therefrom is permitted by clause (e) Administrative Agent for the ratable benefit of the definition of “Permitted Debt” Secured Parties pursuant to the Guarantee and Collateral Agreement, (ii) such loans and advances shall be unsecured and subordinated to the Obligations pursuant to an Affiliate Subordination Agreement and (iiiii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iiia) above;
(ed) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(je) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after Borrower and the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 Subsidiaries may make loans and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, advances in the ordinary course of business, business to their respective employees so long as the aggregate principal amount thereof at any time outstanding (determined without regard to any write-downs or write-offs of such loans and advances) shall not exceed $1,000,000;
(iiif) notes receivable of, or prepaid royalties the Borrower and other extensions of credit to, customers and suppliers the Subsidiaries may enter into Hedging Agreements that are not Affiliates of any Group Member speculative in nature and that are made in the ordinary course of business;
(mg) the Borrower or any Subsidiary may acquire all or substantially all the assets of a Person or line of business of such Person, or not less than 100% of the Equity Interests (other Investments and other acquisitionsthan directors’ qualifying shares) of a Person (referred to herein as the “Acquired Entity”); provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to that (i) such acquisition was not preceded by an unsolicited tender offer for such Equity Interests by, or proxy contest initiated by, the Available Equity Amount at such time, minus Borrower or any Subsidiary; (ii) the sum Acquired Entity shall be in a similar line of business or a reasonable extension thereof as that of the Borrower and the Subsidiaries as conducted during the current and most recent calendar year; and (iii) at the time of such transaction (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time both before and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) after giving effect thereto, no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and continuing; (B) at the time each Borrower would be in compliance with the covenants set forth in Section 6.10 as of the most recently completed period of four consecutive fiscal quarters ending prior to such Investment transaction for which the financial statements and certificates required by Section 5.04(a) or acquisition 5.04(b), as the case may be, and 5.04(d) have been delivered, after giving pro forma effect to such transaction and to any other event occurring after such period as to which pro forma recalculation is purchasedappropriate (including any other transaction described in this Section occurring after such period) as if such transaction had occurred as of the first day of such period; (C) the Borrower shall have delivered a certificate of a Financial Officer, made or otherwise acquiredcertifying as to the foregoing and containing reasonably detailed calculations in support thereof, in form and substance satisfactory to the Administrative Agent; (D) if the Springing Maturity Exercise Date has occurred, the aggregate amount of Required Lenders have provided their prior written consent (such Investment consent not to be unreasonably withheld or the aggregate amount of all consideration paid in connection with delayed) to such acquisition (determined as other than acquisitions pursuant to a binding agreement executed prior to the Springing Maturity Exercise Date) and (E) the Borrower shall comply, and shall cause the Acquired Entity to comply, with the applicable provisions of Section 5.12 and the Security Documents within the time periods set forth in clause therein (g) any acquisition of an Acquired Entity meeting all the definition criteria of this Section being referred to herein as a “Permitted Acquisition”);
(h) shall not exceed Investments made in, or in connection with, any Joint Venture; provided that without the Available Amount at such time (in each case, as certified by a Responsible Officer prior written consent of the ObligorRequired Lenders (such consent not to be unreasonably withheld or delayed), no additional Investments shall be made under this clause (h) after the Springing Maturity Exercise Date other than pursuant to a binding agreement executed prior to the Springing Maturity Exercise Date;
(i) Investments by the Borrower in Hedging Agreements permitted under Section 6.01(i); and
(oj) other Investments in addition to investments permitted by clauses (a) through (h) above, additional investments, loans and other acquisitions; provided that advances by the Borrower and the Subsidiaries so long as (Ax) the aggregate amount invested, loaned or advanced pursuant to this clause (i) (determined without regard to any write-downs or write-offs of such investments, loans and advances) does not exceed $25,000,000 in the aggregate, (y) no Specified Default investments, loans or Event advances under this clause (i) are made in Excluded Subsidiaries (other than Excluded Subsidiaries described in clause (b) of Default shall have occurred and be continuing or would result therefrom the definition thereof) and (Bz) at without the time prior written consent of and immediately the Required Lenders (such consent not to be unreasonably withheld or delayed), no investments, loans or advances under this clause (j) shall be made after giving effect the Springing Maturity Exercise Date other than pursuant to a binding agreement executed prior to the Springing Maturity Exercise Date. Notwithstanding anything herein to the contrary, in no event shall any Loan Party make investments of, or otherwise transfer or dispose of, any material Intellectual Property to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)Excluded Subsidiary.
Appears in 2 contracts
Samples: Credit Agreement (Oscar Health, Inc.), Credit Agreement (Oscar Health, Inc.)
Investments. None Such Obligor will not, and will not permit any of the Parentits Subsidiaries to, the Obligor make, directly or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Personindirectly, or make permit to remain outstanding any Acquisition, other thanInvestments except:
(a) Permitted InvestmentsInvestments outstanding on the Closing Date and identified in Schedule 9.05;
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date)operating deposit accounts with banks;
(c) investments by extensions of credit in the Parent, nature of accounts receivable or notes receivable arising from the Obligor and sales of goods or services in the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries ordinary course of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investmentbusiness;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) aboveCash Equivalent Investments;
(e) Guarantees Investments by the Parent, the Obligor Borrower or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Guarantors in Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) aboveGuarantors;
(f) Investments by Borrower or Subsidiary Guarantors in Foreign Subsidiaries consisting of (i) cash and equipment only in an aggregate amount at any time outstanding (net of any intercompany loan repayments and returns of invested capital) not to exceed on the form date any such Investment is made $1,000,000 or (ii) the transfer of Hedge Agreements permitted under Section 6.12Intellectual Property pursuant to a comprehensive plan that is approved by Borrower’s Board and designed to increase the tax efficiency of Borrower and its Subsidiaries as a whole; provided, that, Majority Lenders shall have provided prior written consent thereto (Lenders agree to consider in good faith through negotiation with Borrower the advantages of such plan to Borrower and its shareholders compared to any potential loss in collateral value, priority of rights with respect to collateral or ability to enforce timely the Loan Documents for the Lenders and any related changes in creditworthiness of Borrower and the Subsidiary Guarantors, in each case, associated with any such transfer of Intellectual Property);
(g) Permitted AcquisitionsHedging Agreements entered into in the ordinary course of Borrower’s financial planning solely to hedge currency risks (and not for speculative purposes) and in an aggregate net exposure amount for all such Hedging Agreements not in excess of $100,000 (or the Equivalent Amount in other currencies);
(h) Any payrollInvestments consisting of security deposits with utilities, travel, entertainment, relocation landlords and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are other like Persons made in the ordinary course of business;
(i) Investments received employee loans, travel advances and guarantees in connection accordance with the bankruptcy or reorganization of, or settlement of delinquent accounts Borrower’s usual and disputes with, customers and suppliers, or in connection customary practices with the satisfaction or enforcement of claims due or owing to any Group Member, in each case respect thereto (if permitted by applicable law) which in the ordinary course of businessaggregate shall not exceed $200,000 outstanding at any time (or the Equivalent Amount in other currencies);
(j) Investments held received in connection with any Insolvency Proceedings in respect of any customers, suppliers or clients and in settlement of delinquent obligations of, and other disputes with, customers, suppliers or clients;
(k) Investments as part of a Permitted Commercialization Arrangement; provided, that, the value of the cash and tangible property components of such Investment shall not exceed $1,000,000 in the aggregate at any time outstanding for all such Permitted Commercialization Arrangements taken together;
(l) Investments permitted under Section 9.03 (other than by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with reference to this Section 6.07 9.05 or held by any Person merged into or consolidated with any Group Member after clause hereof);
(m) Investments acquired as a result of a Permitted Acquisition to the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation Permitted Acquisition and were in existence on prior to the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contractsPermitted Acquisition, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the an aggregate amount of not to exceed $1,000,000 at any time outstanding (or such Investment or higher threshold as consented to by Majority Lenders, such consent not to be unreasonably withheld), subject to the aggregate amount of all consideration paid in connection with such acquisition (determined as other limits on Investments set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;Section 9.05; and
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event permitted by Borrower’s investment policy as in effect as of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchaseddate of this Agreement, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined changes thereto as set forth in clause (g) of shall be approved by Borrower’s Board with the definition of “Permitted Acquisition”) consent to Majority Lenders, which consent shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)unreasonably withheld.
Appears in 2 contracts
Samples: Term Loan Agreement (NeuroPace Inc), Term Loan Agreement (NeuroPace Inc)
Investments. None of the ParentMake or hold any Investments, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Permitted InvestmentsInvestments held by the Borrower and its Subsidiaries in the form of Cash Equivalents;
(b) Investments existing on advances to officers, directors and employees of the Closing Date Borrower and Subsidiaries in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but an aggregate amount not to exceed $2,000,000 at any additions thereto (including any capital contributions) made after the Closing Date)time outstanding;
(ci) investments Investments by the Parent, the Obligor Borrower and the other Restricted its Subsidiaries in Equity Interests in their Restricted respective Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of outstanding on the Parent prior to such investmentsdate hereof, (ii) any such Equity Interests held additional Investments by a the Borrower and its Subsidiaries in Loan Party shall Parties (other than Holdings); provided, that notwithstanding this clause (ii), intercompany loans to Holdings will be pledged permitted to the extent required by the definition Restricted Payments to Holdings would be permitted under Section 7.06 (so long as such intercompany loan is counted as a Restricted Payment for purposes of the term “Collateral and Guarantee Requirement” and Section 7.06), (iii) additional Investments by Subsidiaries of the aggregate amount of such investments by the Borrower that are not Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and or Qualified Subsidiaries in other obligations of, Restricted Subsidiaries that are not Loan Parties or Qualified Subsidiaries, (excluding all such investments, loans, advances iv) Investments by the Borrower and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 its Subsidiaries in Qualified Subsidiaries and (yv) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) any loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided Subsidiary that meets the requirements of clauses (i1), (2) the Indebtedness resulting therefrom is permitted by clause and (e3) of the definition of “Permitted Debt” Qualified Subsidiary; provided that to the extent such Investment referred to in clause (iv) or (v) constitutes Indebtedness or advances of or to any Qualified Subsidiary or a Subsidiary meeting the requirements of clauses (1), (2) and (ii3) of the amount definition of Qualified Subsidiary from the Borrower or any Subsidiary Guarantor, such Indebtedness shall be evidenced by a promissory note to the Borrower or such Subsidiary Guarantor, as the case may be, secured by substantially all assets of such loans Qualified Subsidiary or such Subsidiary meeting the requirements of clauses (1), (2) and advances made by (3) of the Loan Parties to Restricted Subsidiaries that are not Loan Parties definition of Qualified Subsidiary (such note as so secured, a “Secured Intercompany Note”), which Secured Intercompany Note shall be subject pledged to the limitation Administrative Agent for the benefit of the Secured Parties in accordance with the terms of the Security Agreement; provided that the Administrative Agent shall be entitled to reasonably request that the payee on such intercompany note take such actions or request such items (similar to those set forth in clause Section 6.12) as the Administrative Agent reasonably believes is necessary to perfect the security interest of the payee in any such Secured Intercompany Note.
(c)(iiid) aboveInvestments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(e) Guarantees permitted by Section 7.02(h) and guarantees of obligations incurred by Qualified Subsidiaries not constituting Indebtedness entered into in the Parent, the Obligor or any other Restricted Subsidiary ordinary course of Indebtedness or other obligations business of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint Borrower and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) aboveits Subsidiaries;
(f) Investments existing on the date hereof (other than those referred to in Section 7.03(c)(i)) and set forth on Schedule 7.03 or an Investment consisting of any extension, modification or renewal of any Investment existing as of the form date hereof and set forth on Schedule 7.03 (excluding any such extension, modification or renewal involving additional advances, contributions or other investments of Hedge Agreements permitted under Section 6.12cash or property or other increases thereof unless it is a result of the accrual or accretion of interest or original issue discount or payment-in-kind pursuant to the terms, as of the date hereof, of the original Investment so extended, modified or renewed) and pursuant to any binding commitment outstanding as of the date hereof and set forth on Schedule 7.03;
(g) Permitted Acquisitionsthe purchase or other acquisition of Equity Interests in any Person (which, upon such acquisition, shall become a Qualified Subsidiary), or all or substantially all of the property of, any Person the assets of which, upon the consummation thereof, will be owned by the Borrower, one or more Subsidiary Guarantors or one or more Qualified Subsidiaries; provided that, with respect to each purchase or other acquisition made pursuant to this Section 7.03(g):
(i) no Default shall have occurred or be continuing either before or after such purchase or acquisition;
(ii) Section 6.12 shall be complied with with respect to such newly acquired Subsidiary and property;
(iii) the lines of business of the Person to be (or the property of which is to be) so purchased or otherwise acquired shall be substantially the same lines of business as one or more of the principal businesses of the Borrower and its Subsidiaries;
(iv) with respect to any transaction involving Acquisition Consideration of more than $10,000,000, unless the Administrative Agent shall otherwise agree, the Borrower shall have provided the Administrative Agent with (A) historical financial statements for the last three fiscal years (or, if less, the number of years since formation) of the person or business to be acquired (audited if available without undue cost or delay) and unaudited financial statements thereof for the most recent interim period which are available, and (B) any such other information and data relating to such transaction or the Person or assets to be acquired as may be reasonably requested by the Administrative Agent;
(v) immediately after giving effect to any such purchase or other acquisition on a Pro Forma Basis, the Borrower and its Subsidiaries shall be in compliance on a Pro Forma Basis with all of the covenants set forth in Section 7.10 as of the most recent quarter end date (it being understood that if such most recent quarter end date is prior to September 30, 2010, the covenant levels set forth in Section 7.10 for September 30, 2010 shall apply for such purpose); and
(vi) the Borrower shall have delivered to the Administrative Agent and each Lender, at least five Business Days prior to the date on which any such purchase or other acquisition is to be consummated, a certificate of a Responsible Officer, in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders, certifying that all of the requirements set forth in this clause (g) have been satisfied or will be satisfied on or prior to the consummation of such purchase or other acquisition; and
(h) Any obligations of one or more officers or other employees of the Borrower or any of its Subsidiaries in connection with such officer’s or employee’s acquisition of Equity Interests of the Borrower or Holdings (or any other direct or indirect parent company of the Borrower) so long as no cash or other assets are paid by the Borrower or any of its Subsidiaries to such officers or employees in connection with the acquisition of any such obligations;
(i) other Investments not exceeding, in the aggregate at any time outstanding, the greater of (i) $35,000,000 and (ii) 6.0% of Total Assets at the time of any Investment pursuant to this clause;
(j) payroll, travel, entertainment, relocation travel and similar advances to directorscover business-related travel expenses, officers and employees of any Group Member that are expected at the time of such advances to be treated as moving expenses of such Group Member for accounting purposes and that are made or other similar expenses, in each case incurred in the ordinary course of business;
(ik) any Investment in a Receivables Subsidiary or any Investment by a Receivables Subsidiary in any other Person in connection with a Qualified Receivables Transaction, including, without limitation, Investments of funds held in accounts permitted or required by the arrangements governing such Qualified Receivables Transaction or any related indebtedness;
(l) the acquisition by a Receivables Subsidiary in connection with a Qualified Receivables Transaction of Equity Interests of a trust or other Person established by such Receivables Subsidiary to effect such Qualified Receivables Transaction; and any other Investment by the Borrower or a Subsidiary of the Borrower in a Receivables Subsidiary or any Investment by a Receivables Subsidiary in any other Person in connection with a Qualified Receivables Transaction customary for such transactions;
(m) any Investment received in connection with a disposition of assets not constituting a Material Disposition;
(n) any Investment solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of Holdings or any parent of Holdings;
(o) any Investments received in compromise, settlement or resolution of (A) obligations of trade debtors or customers that were incurred in the ordinary course of business of the Borrower or any of its Subsidiaries, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or reorganization ofinsolvency of any trade debtor or customer, (B) litigation, arbitration or settlement other disputes with Persons who are not Affiliates or (C) as a result of delinquent accounts and disputes with, customers and suppliers, a foreclosure by the Borrower or in connection any Subsidiary with the satisfaction or enforcement of claims due or owing respect to any Group Membersecured Investment or other transfer of title with respect to any secured Investment in default;
(p) Investments represented by Obligations under any Secured Hedge Agreement entered into to protect against fluctuations in interest rates, exchange rates and commodity prices;
(q) Investments in each case prepaid expenses, negotiable instruments held for collection and lease, utility and workers compensation, performance and similar deposits entered into as a result of the operations of the business in the ordinary course of business;
(jr) repurchases of the Senior Secured Notes to the extent permitted by Section 7.14;
(s) Investments held by consisting of amounts potentially due from a seller of property in an acquisition that (i) relate to customary post-closing adjustments with respect to accounts receivable, accounts payable and similar items typically subject to post-closing adjustments in similar transactions and (ii) are outstanding for a period of one hundred twenty (120) days or less following the closing of such acquisition;
(t) good faith deposits in connection with any Restricted acquisition, joint venture or acquisition of assets and escrowed money in connection with Material Dispositions, acquisitions or joint ventures;
(u) Investments of a Subsidiary of the Equity Interests in which are Borrower acquired after the Closing Date in compliance with this Section 6.07 or held by any of a Person merged into into, amalgamated with or consolidated with any Group Member a Subsidiary of the Borrower in a transaction that is not prohibited by Section 7.04 after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger merger, amalgamation or consolidation and were in existence on the date of such merger, acquisition, merger amalgamation or consolidation;
(kv) Investments that are made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;Excluded Contributions; and
(lw) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with receivables owing to the purchase of goods Borrower or services any Subsidiary if created or the performance of leases, licenses or contracts, in each case, acquired in the ordinary course of businessbusiness and payable or dischargeable in accordance with customary trade terms; provided, and (iii) notes receivable ofhowever, that such trade terms may include such concessionary trade terms as the Borrower or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, Subsidiary deems reasonable under the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)circumstances.
Appears in 2 contracts
Samples: Credit Agreement (American Renal Associates LLC), Credit Agreement (American Renal Associates LLC)
Investments. None of the ParentMake or maintain any Investments, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Permitted InvestmentsInvestments held by the Loan Parties in the form of Cash Equivalents that are subject to the Administrative Agent’s Lien and control, pursuant to documentation in form and substance reasonably satisfactory to the Administrative Agent;
(b) Investments existing on loans and advances to officers, directors and employees of the Closing Date Loan Parties and Subsidiaries made in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but Ordinary Course of Business in an aggregate amount at any one time outstanding not any additions thereto (including any capital contributions) made after the Closing Date)to exceed $500,000;
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Investments in Subsidiaries are Restricted Subsidiaries of outstanding on the Parent prior to such investmentsdate hereof, (ii) any such Equity Interests held by a Investments in wholly-owned Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and Parties (other than Holdings), (iii) the aggregate amount of such investments Investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties in other Subsidiaries that are not Loan Parties, and (excluding all iv) so long as no Default or Event of Default has occurred and is continuing or would result from such investmentsInvestment, loansInvestments in Subsidiaries that are not Loan Parties in an aggregate amount in any fiscal year not to exceed $100,000; provided that, advances and Guarantees existing on the date hereof and permitted by Borrower Agent shall have delivered a certificate to the Administrative Agent demonstrating compliance with this clause (biv) aboveat least ten (10) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) Business Days prior to the date of each such Investment;
(d) loans Investments consisting of extensions of credit in the nature of accounts receivable or advances made by notes receivable arising from the Parentgrant of trade credit in the Ordinary Course of Business, the Obligor and Investments received in satisfaction or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject partial satisfaction thereof from financially troubled Account Debtors to the limitation set forth extent reasonably necessary in clause (c)(iii) aboveorder to prevent or limit loss;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) aboveSection 8.01;
(f) Investments existing as of the date hereof as described in Schedule 8.03 (setting forth, as of the form Closing Date, the amount, obligor or issuer and maturity, if any, thereof) and extensions or renewals thereof, provided that no such extension or renewal shall be permitted if it would (i) increase the amount of Hedge Agreements permitted under Section 6.12such Investment at the time of such extension or renewal or (ii) result in a Default hereunder;
(g) Permitted Acquisitions;
(h) Any payrollSwap Agreements otherwise permitted hereunder constituting Investments; and
(i) other Investments not constituting Acquisitions so long as the Payment Conditions are satisfied with respect thereto. Notwithstanding the terms of this Section 8.03 or Sections 8.04 or 8.05, travelin no event shall any Loan Party or any Subsidiary sell, entertainmentlease, relocation convey, assign, transfer or otherwise dispose of material Intellectual Property of the Loan Parties or any Subsidiary to any person who is, (a) in the case of a disposition by any Loan Party, not a Loan Party, or (b) in the case of a non-Loan Party, not Holdings or a Subsidiary, in each case of (a) and similar advances to directors(b), officers and employees other than non-exclusive licenses, sublicenses or cross-licenses of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made intellectual property or other general intangibles in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor).
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Purple Innovation, Inc.), Credit Agreement (Purple Innovation, Inc.)
Investments. None of the Parent, the Obligor Make or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer permit to exist any Investment in any other Person, or make any AcquisitionInvestments, other than:
(a) Permitted Investmentscash and Cash Equivalents;
(b) Investments existing on the Closing Date received in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date)satisfaction or partial satisfaction of royalty receivables from financially troubled account debtors;
(c) investments Permitted Acquisitions (x) on or prior to June 30, 2020, by RP Investments or a Subsidiary thereof; provided, that Remainco provides the Applicable Remainco Ownership Percentage of the consideration paid in respect of such Permitted Acquisition and (y) at any time by the Parent, the Obligor and the Borrower or any Subsidiary (other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiariesthan RP Investments or a Subsidiary thereof); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount consideration for all such Permitted Acquisitions of such investments Royalty Assets that are owned by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all or Alternative Credit Support Entities) shall not exceed the Non-Loan Party Cap;
(d) Investments by the Borrower in connection with an Affiliate Acquisition;
(e) Investments in (x) RP Investments or a Subsidiary thereof, the proceeds of which are used to satisfy its pro rata portion of milestone payments, installment payments, royalty or revenue sharing payments and payments of research and development expenses and acquired Royalty Assets, in each case with respect to contractual obligations of RP Investments or such investments, loans, advances and Guarantees Subsidiary existing on the date hereof Closing Date or entered into on or prior to June 30, 2020 in accordance with the terms of this Agreement, and permitted (y) Subsidiaries of the Borrower (other than RP Investments or a Subsidiary thereof), the proceeds of which are used to satisfy (A) royalty or revenue sharing payments (but only to the extent of distributions or other amounts received by clause or on behalf of the Borrower in respect of such Investments) or (bB) abovemilestone payments;
(f) shall not, at other Investments (x) in any when made, Subsidiary Guarantor or any Alternative Credit Support Entity and (y) in any other Subsidiary in an amount not to exceed $15,000,000 at any time outstandingthe the Non-Loan Party Cap;
(g) other Investments in an aggregate amount not to exceed the greater of (x) $20,000,000 200,000,000 and (y) 1510.0% of IKE-Adjusted Consolidated EBITDA as for the period of four fiscal quarters of the last day of the Consolidated Group most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitionsended;
(h) Any payroll, travel, entertainment, relocation Investments arising under Secured Cash Management Agreements and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of businessSecured Hedge Agreements;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of businessSLP Interests;
(j) Investments held by the Borrower in the form of any Restricted Subsidiary the Equity Interests purchase or other acquisition of additional beneficial interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each caseRP Investments, so long as such Investments were not made in contemplation no Event of Default shall exist immediately prior to or in connection with such acquisition, merger or consolidation and were in existence on after giving effect to the date making of such acquisition, merger or consolidation;Investment; and
(k) Investments made as a result of any Investment by the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made Borrower in connection with any Specified Distribution Transaction. provided that the purchase of goods or services or the performance of leases, licenses or contracts, Borrower and its Subsidiaries shall not make any Investment in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided thatNon-Core Royalty Assets if, at the time each of such Investment or acquisition is purchased, made or otherwise acquiredand immediately after giving effect thereto, the aggregate amount of such Investment or the aggregate amount of all consideration paid investments in connection with such acquisition (determined as set forth in clause (g) Non-Core Royalty Assets exceeds 25% of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage assets of the Available Equity Amount subsequent Borrower and its Subsidiaries (to be calculated in good faith by the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid Borrower in connection a manner consistent with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the ObligorGAAP).
Appears in 2 contracts
Samples: Credit Agreement (Royalty Pharma PLC), Credit Agreement (Royalty Pharma PLC)
Investments. None of the ParentMake any Investments, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Permitted Investmentscash or Cash Equivalents so long as such Investments are maintained in accounts subject to a Deposit Account Control Agreement or Securities Account Control Agreement, subject to Section 6.17 or an Excluded Account;
(b) 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;
(c) Investments consisting of stock, obligations, securities or other property received in settlement of accounts receivable (created in the ordinary course of business) from bankrupt obligors;
(d) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on as of the Closing Date and set forth on in Schedule 6.07 (but 7.02 provided, that the amount of any such Investment is not any additions thereto (including any capital contributions) made increased after the Closing Date)Date except in accordance with this Section 7.02;
(ce) investments Guarantees permitted by Section 7.03;
(f) Permitted Acquisitions;
(g) loans and advances to employees, directors and officers of the Parent, Loan Parties not to exceed $200,000 in the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries aggregate at any time outstanding;
(including as capital contributions to such Restricted Subsidiaries); provided that h) intercompany Investments by (i) such Restricted Subsidiaries are Restricted Subsidiaries of any Loan Party in any other wholly-owned Loan Party (excluding the Parent prior to such investmentsBorrower), (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at in any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) Loan Party or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any in other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan PartyParties, (iii) any Loan Party in Excluded Subsidiaries which are not-for-profit entities in an aggregate amount not to exceed $2,500,000, (iv) any Loan Party in Foreign Subsidiaries in an aggregate amount not to exceed (A) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except amount then available for any such Guarantees Permitted Acquisitions under the Bond Documents or of Indebtedness permitted by clause (b) or (eviii) of the definition thereof if the proceeds of the term “such Investments are used solely for Permitted Debt”, Acquisitions and (ivB) $8,000,000 if the aggregate amount proceeds of Indebtedness such Investments are used for purposes other than Permitted Acquisitions and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by (v) any Loan Party shall be subject in Foreign Subsidiaries to the limitation set forth in clause (c)(iii) above;
(f) extent such Investments in are funded solely with the form proceeds of Hedge Agreements permitted under Section 6.12;
(g) the issuance by the Borrower of its Capital Stock and such proceeds are used solely for Permitted Acquisitions;
(hi) Any payrollshort-term loans to employees and consultants who hold options under the Target Acquisition Agreement in an amount not to exceed $5,000,000 in the aggregate, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at provided the time maturity date of such advances to be treated as expenses loans is not later than one hundred eighty (180) days after the Closing Date;
(j) Collateralized Investments not exceeding $2,500,000 individually or $5,000,000 in the aggregate outstanding at any time, provided that Loan Parties shall not make any such Collateralized Investment at any time that a Default or Event of such Group Member for accounting purposes Default has occurred and that are made is continuing;
(k) notes received in settlement of accounts receivable (created in the ordinary course of business;
(i) Investments received in connection with from the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;Managed Entities; and
(l) other Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, not including Investments in the ordinary course of business, Excluded Subsidiaries) by the Loan Parties and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are their Subsidiaries not Affiliates of any Group Member and that are made exceeding in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)$3,000,000.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Providence Service Corp), Credit and Guaranty Agreement (Providence Service Corp)
Investments. None of the ParentEach Borrower shall not, the Obligor and shall cause its Subsidiary Owners to not, directly or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdindirectly, make or otherwise suffer to exist own any Investment in any other Person, or make including any AcquisitionJoint Venture, other thanexcept:
(a) Permitted InvestmentsInvestments in Cash and Cash Equivalents;
(b) Investments existing on owned as of the Closing Petition Date by (i) any Borrower in Subsidiariesany other Borrower, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not ii) any additions thereto Borrower in any Subsidiary of a Borrower or (including iii) any capital contributions) made after the Closing Date)Subsidiary of Borrower in another Subsidiary of Borrower;
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that Investments (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior constituting deposits, prepayments and other credits to such investmentssuppliers, and/or (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payrolladvances made to distributors, travelsuppliers, entertainmentlicensors and licensees, relocation and similar advances to directorsin each case, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of businessbusiness and consistent with the past practices of the Borrowers and, in the case of clause (ii), to the extent necessary to maintain the ordinary course of supplies; provided that any Investment made under this subsection (c) shall be in accordance with the DIP Budget;
(id) intercompany loans to non-debtor Subsidiaries of any Borrower in accordance with the DIP Budget, to the extent approved by the Bankruptcy Court and the Requisite Lenders and subject to documentation satisfactory to the Initial Lender in its sole discretion;
(e) Contributions necessary to cause Subsidiary Contribution funds to be used by Subsidiary Owners for the purposes expressly permitted therefor under the DIP Budget;
(f) Distributions of Cash from Subsidiaries of HIT to HIT and/or HITOP (or to any joint venture partner under the operating agreements of BSE/AH Blacksburg Hotel, L.L.C., BSE/AH Blacksburg Hotel Operator, L.L.C. and TCA Block 7 Hotel, L.L.C., to the extent required thereunder);
(g) Investments held by any Borrower as of the Petition Date; and
(h) Investments received in connection with the bankruptcy compromise or reorganization of, resolution of obligations of trade creditors or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case that were incurred in the ordinary course of business;
(j) Investments held by business of any Borrower or any of its Subsidiaries. Notwithstanding anything in this Section 6.5 to the contrary, in no event shall any Borrower make any Investment that results in or facilitates in any manner any Restricted Subsidiary Payment not otherwise permitted under the Equity Interests terms of Section 6.3 or that is otherwise in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection manner inconsistent with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)DIP Budget.
Appears in 2 contracts
Samples: Dip Credit Agreement (Hospitality Investors Trust, Inc.), Restructuring Support Agreement (Hospitality Investors Trust, Inc.)
Investments. None of the Parent, the Obligor The Credit Parties shall not and shall not cause or any other Restricted Subsidiary shall purchase permit their Subsidiaries to directly or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, indirectly make or otherwise suffer to exist own any Investment in any other Person, or make any Acquisition, other thanPerson except:
(a) Permitted InvestmentsBorrower and its Subsidiaries may make and own Investments in Cash Equivalents subject to Control Agreements in favor of Agent;
(b) Borrower and the other Credit Parties may make loans to other Credit Parties to the extent permitted under SECTION 5.1;
(c) Borrower and its Subsidiaries may make loans and advances to employees for moving, entertainment, travel and other similar expenses in the ordinary course of business not to exceed $1,500,000 in the aggregate at any time outstanding;
(d) Credit Parties and their Subsidiaries may make capital contributions to their wholly-owned Subsidiaries that are Credit Parties other than Xxxxxxx, Xxxxxxx Radiology, ProNet and FRI;
(e) Investments representing non-cash consideration received in accordance with SECTION 5.7;
(f) Investments existing on the Closing Date in SubsidiariesDate, and other Investments existing on the Closing Date and as set forth on Schedule 6.07 (but SCHEDULE 5.3 and any renewals, amendments and replacements thereof that do not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) increase the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12thereof;
(g) Permitted Acquisitions;
each Credit Party may hold investments comprised of notes payable, or stock or other securities issued by financially troubled Account Debtors (hexcluding Affiliates) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time such Credit Party pursuant to agreements with respect to settlement of such advances to be treated as expenses of Account Debtor's Accounts with such Group Member for accounting purposes and that are made Credit Party negotiated in the ordinary course of business;
(h) Investments consisting of loans by Borrower to employees of Borrower which are used solely by such employees to simultaneously purchase the Stock of Holdings, provided that Holdings contemporaneously contributes the proceeds of such Stock to the capital of Borrower;
(i) Investments received Interest Rate Agreements and other hedging agreements entered into in connection compliance with SECTION 5.1;
(j) Borrower and its Subsidiaries may make advances in the bankruptcy or reorganization ofform of a prepayment of expenses, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case so long as such expenses were incurred in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests business and are being paid in which are acquired after the Closing Date in compliance accordance with this Section 6.07 customary trade terms of Borrower or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidationSubsidiary;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;Permitted Acquisitions; and
(l) in addition to Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with Persons existing on the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined Closing Date as set forth on SCHEDULE 5.3, Borrower and its Subsidiaries may make equity Investments in clause Persons which are not Subsidiaries of Holdings in an aggregate amount not to exceed $2,000,000 in any Fiscal Year (gthe "YEARLY EQUITY INVESTMENT LIMIT") of and $8,000,000 in the definition of “Permitted Acquisition”) shall not exceed aggregate after the Closing Date; PROVIDED, HOWEVER, that commencing with Fiscal Year 2007, the Yearly Equity Investment Limit will be increased in any Fiscal Year by an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage 50% of the Available difference obtained by taking the Yearly Equity Amount subsequent to Investment Limit (excluding any Equity Carry Over Amounts) MINUS the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate actual amount of such Investment or equity Investments made during the aggregate immediately preceding Fiscal Year (the "EQUITY CARRY OVER Amount") (and such Equity Carry Over Amount shall be deemed to be the last amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other equity Investments and other acquisitions; provided made during that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligorsucceeding Fiscal Year).
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Primedex Health Systems Inc), Credit Agreement (Primedex Health Systems Inc)
Investments. None The Company shall not, and shall not permit any of its Restricted Subsidiaries to, and the ParentGuarantor shall not, the Obligor and shall not permit any of its Restricted Subsidiaries to, directly or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanindirectly:
(a1) Permitted Investments;make any Restricted Investment; or
(b2) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not allow any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness the Company or other obligations of the ParentGuarantor to become an Unrestricted Subsidiary, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07unless, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;:
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A1) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined occur as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor)consequence thereof; and
(o2) other Investments the Company would, at the time of, and other acquisitionsafter giving effect to, such Restricted Investment or such designation of a Restricted Subsidiary as an Unrestricted Subsidiary, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio test set forth in the first paragraph of Section 4.10. Any designation of a Subsidiary of the Company or the Guarantor as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of the Board Resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by this Section 4.08. If, at any time, any Unrestricted Subsidiary would fail to meet the requirements as an Unrestricted Subsidiary described in the definition of "Unrestricted Subsidiary," it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company or the Guarantor as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.10, the Company or the Guarantor, as the case may be, shall be in default. The Board of Directors of the Company and the Guarantor may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company or the Guarantor, respectively, of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (A1) such Indebtedness is permitted under the covenant described under Section 4.10 calculated on a pro forma basis as if such designation had occurred at the beginning of the Reference Period; and (2) no Specified Default or Event of Default shall have occurred and would be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any in existence following such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)designation.
Appears in 2 contracts
Samples: Indenture (Charter Communications Holdings Capital Corp), Indenture (Charter Communications Holdings Capital Corp)
Investments. None No Credit Party shall, nor shall it permit any of the Parentits Subsidiaries to, the Obligor directly or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdindirectly, make or otherwise suffer to exist any Investment in any other Person, or make including any AcquisitionJoint Venture, other thanexcept:
(a) any Investment in Parent Borrower, any of its Wholly-Owned Subsidiaries or any of the Guarantor Subsidiaries; provided that the aggregate amount of Investments by Parent Borrower or any Guarantor Subsidiary in any Wholly-Owned Subsidiary that is not a Guarantor Subsidiary (other than any Investment constituting a Permitted InvestmentsForeign Subsidiary Restructuring), when aggregated with the Acquisition Consideration for all Investments made pursuant to Section 6.6(c)(iii), shall not exceed $200,000,000 at any one time outstanding;
(b) Investments existing on the Closing Date any Investment in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date)Cash Equivalents;
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries Permitted Acquisitions of the Parent prior to such investmentsPersons that become Guarantor Subsidiaries, (ii) Permitted Acquisitions by Wholly-Owned Foreign Subsidiaries of Persons that do not become Guarantor Subsidiaries, so long as (x) any such Equity Interests held Permitted Acquisition shall not be financed, directly or indirectly, with the proceeds of the Revolving Loans or any Investment made by a Loan Credit Party shall (unless such Investment was made by a Credit Party under another provision of this Section 6.6) and (y) the Leverage Ratio of Parent Borrower and its Subsidiaries, based on the most recent Compliance Certificate received by Administrative Agent pursuant to Section 5.1(c), would be pledged less than 5.0:1.0, on a pro forma basis after giving effect to the extent required by the definition of the term “Collateral and Guarantee Requirement” such Permitted Acquisition, and (iii) Permitted Acquisitions of Persons that do not become Guarantor Subsidiaries, the aggregate amount Acquisition Consideration for which, together with all other Permitted Acquisitions of such investments by the Loan Parties inPersons that do not become Guarantor Subsidiaries pursuant to this clause (iii), and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding when aggregated with all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered outstanding Investments made pursuant to Section 5.04(a6.6(a) or 5.04(b) prior which are subject to the date of such Investmentlimitation in the proviso therein, shall not exceed $200,000,000;
(d) loans the SDI Acquisition;
(e) any Investment in securities or advances other assets not constituting Cash Equivalents and received in connection with an Asset Sale made by the Parent, the Obligor pursuant to Section 6.8(b)(10) hereof or any other Restricted Subsidiary disposition of assets not constituting an Asset Sale;
(f) any Investment existing on the Second Restatement Effective Date or made pursuant to a binding commitment in effect on the Second Restatement Effective Date, in each case as reflected on Schedule 6.6, or an Investment consisting of any Restricted Subsidiaryextension, modification, replacement or renewal of any such Investment or binding commitment existing on the Second Restatement Effective Date; provided that the amount of the original Investment is not increased by such extension, modification, replacement or renewal (other than as a result of any change in the Dollar Equivalent of any Investment denominated in a foreign currency);
(g) any Investment acquired by Parent Borrower or any of its Subsidiaries:
(1) in exchange for any other Investment or accounts receivable held by Parent Borrower or any such Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the issuer of such other Investment or accounts receivable (including any trade creditor or customer); or
(2) in satisfaction of judgments against other Persons; or
(3) as a result of a foreclosure by Parent Borrower or any of its Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured Investment in default;
(h) Investments with respect to Hedge Agreements (and guarantees thereof) permitted under Section 6.1(i) hereof;
(i) any guarantee of Indebtedness (including any Guarantee) permitted under Section 6.1 hereof and any performance guarantees and Contingent Obligations in the Indebtedness resulting therefrom is permitted by ordinary course of business and any Liens on the assets of Parent Borrower or any Subsidiary incurred in compliance with Section 6.2 hereof;
(j) any Investment consisting of a purchase or other acquisition of inventory, supplies, material, equipment, or Intellectual Property, or the licensing or contribution of Intellectual Property to another Person pursuant to any distribution, service, joint marketing, co-branding, co-distribution, or other similar arrangements with other Persons, however denominated;
(k) additional Investments in an aggregate amount, taken together with all other Investments made pursuant to this clause (ek) that are at that time outstanding, not to exceed $150,000,000;
(l) loans and advances to officers, directors and employees of any direct or indirect parent of Parent Borrower, Parent Borrower or any of its Subsidiaries (A) to finance the definition purchase of “Permitted Debt” and Capital Stock of any direct or indirect parent of Parent Borrower (ii) provided that the amount of such loans and advances made by the Loan Parties used to Restricted Subsidiaries that are not Loan Parties acquire such Capital Stock shall be subject contributed to the limitation set forth Parent Borrower in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising cash as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guarantycommon equity); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (iiB) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Partyfor reasonable and customary business-related travel expenses, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation moving expenses and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Memberexpenses, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, incurred in the ordinary course of business, and (iiiC) notes receivable offor additional purposes not contemplated by subclause (A) or (B) above, in an aggregate principal amount at any time outstanding with respect to this subclause (C) not exceeding $10,000,000;
(m) any Investment the payment for which consists of Equity Interests (exclusive of Disqualified Stock) of Parent Borrower or any of its direct or indirect parent companies;
(n) any Investments in prepaid royalties expenses, checks or other similar negotiable instruments held for collection and other extensions lease, utility and workers’ compensation, performance and similar deposits entered into as a result of credit tothe operations of the business, customers and suppliers that are not Affiliates in each of any Group Member and that are made the foregoing cases of this clause (n), in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and so long as immediately after giving effect to any such Investment or acquisitionInvestment, no Default has occurred and is continuing, and Parent Borrower and its Subsidiaries will be in pro forma compliance with the Total Adjusted Net Leverage Ratio shall covenant set forth in Sections 6.7 (b), other Investments in an amount not to exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer Cumulative Growth Amount immediately prior to the time of the Obligor)making of any Investment. Notwithstanding the foregoing, in no event shall any Credit Party make any Investment which also constitutes a Restricted Junior Payment not otherwise permitted under the terms of Section 6.4.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (IMS Health Holdings, Inc.), Credit and Guaranty Agreement (IMS Health Holdings, Inc.)
Investments. None of the Parent, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other than:
(a) Permitted Investments;
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investmentsThe Subadviser is hereby authorized and directed and hereby agrees, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation stated investment policies and restrictions of the Fund as set forth in clause the Fund’s prospectus (c)(iii“Prospectus”) above;
and statement of additional information (e“SAI”) Guarantees by as currently in effect, as they may be applicable to the ParentSubadviser Assets, and, as soon as practical after the Trust, the Obligor Fund or any other Restricted Subsidiary of Indebtedness the Adviser notifies the Subadviser thereof, as supplemented or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint amended from time to time and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in directions of the form Adviser and the Trust’s Board of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payrollTrustees, travelto monitor on a continuous basis the performance of the Subadviser Assets and to conduct a continuous program of investment, entertainmentevaluation and, relocation if appropriate, sale and similar advances reinvestment of the Subadviser Assets. The Adviser agrees to directors, officers and employees of any Group Member that are expected at provide the time of Subadviser with such advances to assistance as may be treated as expenses of such Group Member for accounting purposes and that are made in reasonably requested by the ordinary course of business;
(i) Investments received Subadviser in connection with the bankruptcy or reorganization ofSubadviser’s activities under this Agreement, including, without limitation, providing information concerning the Fund, its funds available, or settlement of delinquent accounts to become available, for investment and disputes with, customers and suppliers, or in connection with generally as to the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result conditions of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;Fund’s or the Trust’s affairs.
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made The Subadviser will determine the investment and reinvestment of the Subadviser Assets in connection accordance with the purchase wPraxis Trading Approach (1X Leverage) for the period and on the terms set forth in this Agreement. The initial allocation to the Subadviser shall be at least U.S. $6 million. The Adviser agrees that it will make or cause to be made an investment in the Fund of goods at least $100 million, such investment to be made promptly upon launch of the Fund and not to be withdrawn at any time during the “Exclusivity Period,” as defined below. The Subadviser Assets shall not include any notional funds. The Adviser acknowledges that if the net asset value of the Subadviser Assets falls below U.S. $6 million, the Subadviser may not be able to trade the full wPraxis Trading Approach (1X Leverage) portfolio for the Fund. As a result, the Fund’s trading performance may be different from other accounts (if any) traded pursuant to the wPraxis Trading Approach (1X Leverage). To the extent practicable, the Adviser will give the Subadviser written notice (which may be by e-mail) of any additions to or services withdrawals from the Subadviser Assets in such manner as mutually agreed upon between the parties.
(iii) The Subadviser agrees to trade the Subadviser Assets pursuant to its wPraxis Trading Approach (1X Leverage) as described on Exhibit A with such changes and additions to the wPraxis Trading Approach (1X Leverage) as the Subadviser deems appropriate. The Subadviser will have sole authority and responsibility for trading the Subadviser Assets. The transactions by the Subadviser for the Subadviser Assets will be for the account and risk of the Fund. The parties acknowledge that the Subadviser in no respect makes any guarantee of profits or of protection against loss. From time to time, the Adviser or the Fund may provide the Subadviser with written copies of investment policies, guidelines and restrictions applicable to the Subadviser Assets, which shall become effective at such time as agreed upon by both parties. As a result the performance of leases, licenses or contracts, in each case, the Fund may be different from the performance of other accounts managed by the Subadviser pursuant to the wPraxis Trading Approach. The Subadviser will manage the investment and reinvestment of the assets in the ordinary course of businessSubadviser Assets, and (iii) notes receivable ofperform the functions set forth below, subject to the overall supervision, direction, control and review of the Adviser and the Trust’s Board of Trustees, consistent with the investment policies, guidelines and restrictions applicable to the Subadviser Assets, or prepaid royalties any directions or instructions delivered to the Subadviser in writing by the Adviser or the Fund from time to time, and further subject to the plenary authority of the Fund’s Board of Trustees. Consistent with the terms of this Agreement, the Subadviser shall have full discretionary authority to manage the investment of the assets in the Subadviser Assets, including the authority to purchase, sell, cover open positions, and generally to deal in commodity interests, securities, options, short-term investment vehicles and other extensions property comprising or relating to the Subadviser Assets. For the sake of credit toclarity, customers and suppliers notwithstanding anything to the contrary herein except that are not Affiliates the Subadviser must meet the standard of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as care set forth in clause Section 9(a), the parties and the Fund each acknowledge that the Subadviser shall not be responsible for any liability or losses resulting from actions taken pursuant to directions or instructions delivered to the Subadviser in writing (gincluding by e-mail) by the Adviser, the Fund’s Trustees or the Fund (which shall be deemed to be the actions of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquiredAdviser, the aggregate amount of such Investment or Fund’s Trustees and/or the aggregate amount of Fund for all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligorpurposes hereunder).
Appears in 2 contracts
Samples: Subadvisory Agreement (Northern Lights Fund Trust Ii), Subadvisory Agreement (Northern Lights Fund Trust Ii)
Investments. None The Borrower will not, nor will it permit any of the Parent, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdits Subsidiaries to, make or otherwise suffer permit to exist remain outstanding any Investment in any other Person, or make any Acquisition, other thanInvestments except:
(a) operating deposit accounts with banks;
(b) Permitted Investments;
(bi) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor Borrower and the other Restricted its Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Capital Stock of Subsidiaries of the Parent prior to such investments, Borrower (iiother than any Excluded Non-Media Subsidiaries) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) advances by the amount Borrower and its Subsidiaries to any of such loans the Subsidiary Guarantors, and advances made by any of the Loan Parties to Restricted Designated SBG Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each caseBorrower, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of businessbusiness permitted to be incurred by Section 7.01(c);
(md) Investments outstanding on the Fourth Restatement Effective Date (other than Investments permitted under clauses (a), (b) and other acquisitions; provided that, at (c) of this Section) and identified in Schedule 4.14(b);
(e) the time each such Investment or acquisition is purchased, made or otherwise acquired, of the aggregate amount Capital Stock of such Investment Persons or the aggregate amount formation of all consideration paid Wholly Owned Subsidiaries of the Borrower for the acquisition of Capital Stock of Persons, resulting in such Persons becoming Wholly Owned Subsidiaries of the Borrower, in each case for the purpose of enabling the Borrower and its Subsidiaries to consummate acquisitions permitted by Section 7.04;
(f) Guarantees by Subsidiary Guarantors of Indebtedness of the Borrower to the extent such guarantees are permitted under Section 7.01;
(g) Guarantees permitted under Section 7.01(e);
(h) Investments by the Borrower and its Subsidiaries in any Receivables Subsidiary in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to any Receivables Financing permitted under Section 7.01(f);
(i) the Available Equity Amount at such time, minus (ii) the sum of (A) additional Investments not exceeding $5,000,000 in the aggregate amount of Investments made pursuant to this clause (m) subsequent to after the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; Fourth Restatement Effective Date, provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of the making of each such Investment or acquisition is purchased, made would result therefrom;
(j) Investments by the Borrower or otherwise acquired, any of its Subsidiaries not exceeding $13,500,000 in the aggregate amount with respect to payments required to be made after the Fourth Restatement Effective Date with respect to purchase options in existence on such date relating to the purchase of Stations by the Borrower and its Subsidiaries; provided that no Default shall have occurred and be continuing at the time of the making of each such Investment or would result therefrom;
(k) the aggregate amount consummation of all consideration paid the Tender Offer Transactions;
(l) the purchase, repurchase, redemption, defeasance, retirement or refinancing in full by the Borrower of the 8% Senior Subordinated Notes with (i) the proceeds of Indebtedness permitted under Section 7.01(j) and (ii) cash on hand in connection with such acquisition the Specified 8% Notes Refinancing;
(determined as set forth m) the purchase, repurchase, redemption, defeasance, retirement or refinancing in clause (g) full by the Borrower of the definition Holding Company Convertible Debentures with the proceeds of “Permitted Acquisition”Indebtedness permitted under Section 7.01(j);
(n) shall not exceed the Available Amount at such time purchase, repurchase, redemption, prepayment or acquisition for value of any Other Debt to the extent permitted under Section 6.13(b) (in each case, as certified by a Responsible Officer of and the Obligorimmediate retirement or cancellation thereof); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default the refinancing of Permitted Second Priority Refinancing Debt, Permitted Senior Unsecured Refinancing Debt or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)Permitted Subordinated Refinancing Debt.
Appears in 2 contracts
Samples: Credit Agreement (Sinclair Broadcast Group Inc), Credit Agreement (Sinclair Broadcast Group Inc)
Investments. None 10.02 Administrative Agent’s Office; Certain Addresses for Notices A Loan Notice B Note C Compliance Certificate D-1 Assignment and Assumption D-2 Administrative Questionnaire E-1 U.S. Tax Compliance Certificate – Foreign Lenders (Not Partnerships) E-2 U.S. Tax Compliance Certificate – Non-U.S. Participants (Not Partnerships) E-3 U.S. Tax Compliance Certificate – Non-U.S. Participants (Partnerships) E-4 U.S. Tax Compliance Certificate – Foreign Lenders (Partnerships) F Notice of Loan Prepayment This AMENDED AND RESTATED CREDIT AGREEMENT (“Agreement”) is entered into as of March 31, 2021, among MERCURY GENERAL CORPORATION, a California corporation (the “Borrower”), each lender from time to time party hereto (collectively, the “Lenders” and individually, a “Lender”), and BANK OF AMERICA, N.A., as Administrative Agent and L/C Issuer. The Borrower, Bank of America, N.A., in its capacity as administrative agent and certain of the ParentLenders are party to the Existing Credit Agreement (as defined below), the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto)which the lenders thereunder agreed to, holdamong other things, make or otherwise suffer extend $50,000,000 of revolving credit facilities to exist any Investment in any other Person, or make any Acquisition, other than:
(a) Permitted Investments;
(b) Investments existing the Borrower on the Closing Date in Subsidiariesterms and conditions set forth therein. The Borrower has requested that the Lenders amend and restate the Existing Credit Agreement to, among other things, increase the revolving credit facilities available to Borrower to $75,000,000 and other Investments existing make certain amendments to the Existing Credit Agreement. The Administrative Agent and the Lenders have agreed to such requests on the Closing Date terms and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation conditions set forth in clause (c)(iii) above;
(e) Guarantees by this Agreement. In consideration of the Parentmutual covenants and agreements herein contained, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of parties hereto have agreed to amend and restate the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising Existing Credit Agreement in its entirety and covenant and agree as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor).follows:
Appears in 2 contracts
Samples: Credit Agreement (Mercury General Corp), Credit Agreement (Mercury General Corp)
Investments. None The Company will not, nor will it permit any of the Parent, the Obligor or any other its Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdSubsidiaries to, make or otherwise suffer permit to exist remain outstanding any Investment in any other Person, or make any Acquisition, other thanInvestments except:
(a) Investments outstanding on the date hereof and identified in Schedule III hereto;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(bd) escrow or deposit accounts established in connection with the Scheduled Acquisitions or Subsequent Acquisitions, so long as the funds held in such accounts are held in the form of cash or Permitted Investments;
(e) Investments existing on by the Closing Date Company and its Restricted Subsidiaries in the Company and its Restricted Subsidiaries, ;
(f) Investments constituting Subsequent Acquisitions by the Company and other Investments existing on its Restricted Subsidiaries made in accordance with Section 8.05(b)(iv) hereof;
(g) Interest Rate Protection Agreements entered into in the Closing Date ordinary course of the Company's financial planning and set forth on Schedule 6.07 (but not any additions thereto for speculative purposes (including any capital contributions) made after the Closing DateInterest Rate Protection Agreements entered into in accordance with Section 8.12 hereof);
(ch) investments by loans to employees of the Parent, the Obligor and the other Company or any of its Restricted Subsidiaries or Affiliates in Equity Interests in their Restricted Subsidiaries an aggregate amount (including as capital contributions to all such Restricted Subsidiaries); provided that employees) up to $5,000,000 at any one time outstanding;
(i) such Investments (collectively, "Disposition Investments") received in connection with any Disposition by the Company or any of its Restricted Subsidiaries are permitted hereunder and representing all or a part of the non-cash portion of the consideration received by the Company and its Restricted Subsidiaries of the Parent prior pursuant to such investmentsDisposition, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) aggregate amount of Disposition Investments received in connection with any single Disposition shall not exceed 25% of the definition fair market value of “Permitted Debt” the consideration received in connection therewith, and the aggregate amount of Disposition Investments received in connection with all Dispositions shall not exceed $75,000,000 and (ii) the amount of respective certificates and notes evidencing such loans and advances made by the Loan Parties to Restricted Subsidiaries that Disposition Investments are not Loan Parties shall be subject delivered in pledge to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations Administrative Agent pursuant to the Guaranty Security Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests Guarantees referred to in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;8.07(c) hereof; and
(k) additional Investments made (including, without limitation, Investments in Unrestricted Subsidiaries) in an aggregate amount up to but not exceeding $25,000,000 at any one time outstanding or, following the date upon which the Debt Ratio shall have been less than 5.00 to 1 as a result at the last day of two or more consecutive fiscal quarters in an aggregate amount up to but not exceeding $50,000,000, it being understood that the Company shall not be required to pledge any of such Investments as collateral security pursuant to the Security Documents. For purposes of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
foregoing clause (l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquiredk), the aggregate amount of such an Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) at any one time shall not exceed an amount be deemed to be equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant cash, together with the aggregate fair market value of property, loaned, advanced, contributed, transferred or otherwise invested that gives rise to this clause (m) subsequent to the Closing Date as of such time and Investment minus (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as dividends, distributions or other payments received in cash in respect of such time;
(n) other Investments and other acquisitions; Investment, provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such an Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at in any event be reduced by reason of any write-off of such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)Investment.
Appears in 2 contracts
Samples: Credit Agreement (Frontiervision Holdings Capital Corp), Credit Agreement (Frontiervision Capital Corp)
Investments. None The Borrower will not, nor will it permit any of the Parent, the Obligor or any other its Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdSubsidiaries to, make or otherwise suffer permit to exist remain outstanding any Investment in any other Person, or make any Acquisition, other thanInvestments except:
(a) Investments outstanding on the date hereof and identified in Part B of Schedule 3.16 of the Disclosure Supplement;
(b) the Acquisition and Permitted Acquisitions;
(c) Permitted Investments;
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) intercompany loans or advances made by the Parent, Borrower to Restricted Subsidiaries and by Restricted Subsidiaries to the Obligor Borrower or any to other Restricted Subsidiary to any Restricted Subsidiary; Subsidiaries, provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such intercompany loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties Guarantors (i) may not exceed $25,000,000 in the aggregate principal amount at any time outstanding and (ii) shall be subject evidenced by commercially reasonable promissory notes delivered in pledge to the limitation set forth in clause (c)(iii) aboveAdministrative Agent under the Collateral Agreement;
(e) Guarantees by Hedging Agreements entered into to hedge, manage or mitigate risks to which the Parent, the Obligor Borrower or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under is exposed in the Bond Documents conduct of its business or the management of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) aboveits liabilities;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12operating deposit accounts with banks;
(g) Permitted Acquisitionsto the extent they constitute Investments, contributions to Plans and Multiemployer Plans;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of businessGuarantees permitted by Section 6.01;
(i) Investments received in connection consisting of security deposits with the bankruptcy or reorganization of, or settlement of delinquent accounts utilities and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case other like Persons made in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired Unrestricted Subsidiaries, joint ventures and/or Other Consolidated Persons in an aggregate amount for all such Investments made after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were date hereof not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidationto exceed $60,000,000;
(k) Investments made as a result in an aggregate amount (excluding Equity Interests of the receipt Borrower and/or its Subsidiaries but including the assumption of noncash consideration Indebtedness in connection with such Investments) made after the date hereof not exceeding the amount Net Available Proceeds from any Disposition of any asset in compliance with Equity Issuances after the date hereof not required to be applied under Section 6.042.10(b)(ii) and not used to make Permitted Acquisitions;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with loans under the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of businessAcquisition Indemnity;
(m) other additional Investments but not exceeding $10,000,000 in the aggregate at any time outstanding; and
(n) Investments in Subsidiaries of the Borrower outstanding on the date hereof (and other acquisitions; any refinancing thereof provided that, at that the time each such Investment or acquisition aggregate principal amount thereof is purchased, made or otherwise acquirednot increased). For purposes of paragraph (m) of this Section, the aggregate amount of such an Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) at any time shall not exceed an amount be deemed to be equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant cash, together with the aggregate fair market value of property, loaned, advanced, contributed, transferred or otherwise invested that gives rise to this clause (m) subsequent to the Closing Date as of such time and Investment minus (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as dividends, distributions or other payments received in cash or property in respect of such time;
(n) other Investments and other acquisitionsInvestment; provided that (A) no Specified Default or Event the amount of Default an Investment shall have occurred and not in any event be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount reduced by reason of any write-off of such Investment or nor increased by any increase in the aggregate amount of all consideration paid earnings retained in connection with such acquisition (determined as set forth the Person in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any which such Investment is made that have not been dividended, distributed or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)otherwise paid out.
Appears in 2 contracts
Samples: Credit Agreement (Geo Group Inc), Credit Agreement (Geo Group Inc)
Investments. None of the ParentAladdin Gaming and Subsidiaries will not make, the Obligor incur, assume or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a1) Permitted Ongoing Investments;
(b2) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date)Cash Equivalent Investments;
(c3) investments without duplication, Investments to the extent permitted as Indebtedness pursuant to Section 11(b) hereof;
(4) without duplication, Investments permitted as Capital Expenditures pursuant to Section 11(g) hereof;
(5) Investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital way of contributions to such Restricted Subsidiaries); provided that capital or purchases of interests (directly or indirectly) (i) by Aladdin Gaming in AMH and Aladdin Music or by such Restricted Subsidiaries are Restricted Subsidiaries Subsidiary in any of its Subsidiaries, subject to the limitations and the satisfaction of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition conditions set forth in Section 2.2.7 of the term “Collateral and Guarantee Requirement” and Disbursement Agreement,
(iii6) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of Investments constituting (x) $20,000,000 and accounts receivable arising, (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parenttrade debt granted, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (ez) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are deposits made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy purchase price of goods or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Memberservices, in each case in the ordinary course of business;
(j7) Investments held the grant by any Restricted Subsidiary Aladdin Gaming to Bazaar of the Equity Interests Mall Project Ground Lease and, upon the subdivision of the Site, the transfer by Aladdin Gaming to Aladdin Bazaar of the fee interest in which are acquired after the Closing Date in compliance with this Mall Project Parcel and the Mall Project Easements; subject however, to subsection (b) of Section 6.07 or held by any Person merged into or consolidated with any Group Member after 7.1.21 of the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidationSenior Credit Agreement;
(k) Investments made as a result 8) the grant of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04Energy Project Ground Lease;
(l9) Investments consisting (x) the grant by Aladdin Gaming to AMH of (i) extensions of trade creditthe Music Project Ground Lease by Aladdin Gaming to Aladdin Music, (iiy) deposits made in connection with upon the purchase subdivision of goods or services or the performance Site, the transfer by Aladdin Gaming to Aladdin Music of leases, licenses or contracts, in each case, the fee interest in the ordinary course Music Project Parcel and the Music Project Easements, subject, however, to subsection (c) of businessSection 7.1.19 of the Senior Credit Agreement, and (iiiz) notes receivable ofupon consummation of the Music Project financing, or prepaid royalties and other extensions an Investment not to exceed $21,250,000 in consideration for preferred Membership Interests in Aladdin Music pursuant to the Organizational Documents of credit toAladdin Music; provided, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;however, that
(m10) other Investments and other acquisitions; provided thatany Investment which when made complied with the requirements of clauses (w), at the time each such Investment (x) or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (gy) of the definition of “Permitted Acquisition”the term "Cash Equivalent Investment" may continue to be held notwithstanding that such Investment if made thereafter would not comply with such requirements; and
(11) no Investment otherwise permitted by clauses (3), (4), (5), (6) or (9) shall not exceed an amount equal be permitted to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments be made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified if any Default or Event of Default shall have has occurred and be is continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)therefrom.
Appears in 2 contracts
Samples: Facilities Agreement (Aladdin Capital Corp), Facilities Agreement (Aladdin Gaming Enterprises Inc)
Investments. None Make any advance, loan, extension of the Parentcredit (by way of guaranty or otherwise) or capital contribution to, the Obligor or purchase any Equity Interests, bonds, notes, debentures or other debt securities of, or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not assets constituting a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Personsignificant part of a business unit of, or make any Acquisitionother investment in, other thanany Person (all of the foregoing, “Investments”), except:
(a) Permitted Investments;
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries extensions of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of trade credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(ib) Investments received investments in connection with Cash Equivalents;
(c) Guarantee Obligations permitted by Section 7.2;
(d) loans and advances to employees of the bankruptcy Borrower or reorganization of, or settlement any of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case its Subsidiaries in the ordinary course of businessbusiness (including for travel, entertainment and relocation expenses) in an aggregate amount not to exceed $25,000,000 at any one time outstanding;
(je) Investments held (including capital expenditures) (i) by the Borrower or any of its Subsidiaries in (x) the Borrower or any Subsidiary that, prior to such Investment, is a Wholly Owned Subsidiary Guarantor, or (y) any then existing Subsidiary that is not a Subsidiary Guarantor if such Subsidiary becomes a Wholly Owned Subsidiary Guarantor concurrently with the making of such Investment and (ii) by any Restricted Subsidiary of the Borrower that is not a Subsidiary Guarantor in any other Subsidiary of the Borrower that is not a Subsidiary Guarantor;
(f) acquisitions by the Borrower or any Wholly Owned Subsidiary Guarantor of operating assets (substantially all of which pertain to a Permitted Line of Business), directly through an asset acquisition or indirectly through the acquisition of the Equity Interests of a Person substantially engaged in which are acquired a Permitted Line of Business (when after giving effect to the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date acquisition of such acquisitionEquity Interests, merger or consolidation;
(k) Investments made as a result the Borrower and its Wholly Owned Subsidiary Guarantors will own 100% of the receipt Equity Interests of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(lsuch Person) Investments consisting of , provided, that (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (Bii) at the no time each such Investment or acquisition is purchased, made or otherwise acquired, shall the aggregate amount Consideration paid during the period from the date of consummation of the Acquisition Transactions through such Investment or the aggregate amount of all consideration paid time in connection with any such acquisition (determined as set forth in clause acquisitions of Equity Interests of Persons who, together with their Subsidiaries, are not Wholly Owned Subsidiary Guarantors at such time, exceed $2,000,000,000;
(g) the Borrower or any of the definition of “Permitted Acquisition”its Subsidiaries may contribute operating assets to any Non-Recourse Subsidiary (other than an Escrow Borrower) shall not exceed the Available Amount at so long as (i) such time Disposition is permitted pursuant to Section 7.5(f), (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (Aii) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom therefrom, (iii) after giving effect thereto, the Consolidated Leverage Ratio shall be equal to or lower than the Consolidated Leverage Ratio in effect immediately prior thereto and (Biv) the Equity Interests received by the Borrower or any of its Subsidiaries in connection therewith shall be pledged as Collateral (either directly or through a holding company parent of such Non-Recourse Subsidiary so long as such parent is a Wholly Owned Subsidiary Guarantor);
(h) in addition to Investments otherwise expressly permitted by this Section, Investments by the Borrower or any of its Subsidiaries in an aggregate amount outstanding at any time (initially valued at cost and giving effect to all payments received in respect thereof whether constituting dividends, prepayment, interest, return on capital or principal or otherwise unless such payments are from a Non-Recourse Subsidiary (other than an Escrow Borrower) and applied to make a Restricted Payment under Section 7.6(h) or an Investment under Section 7.7 (l) or 7.7(m)), not to exceed the sum of $300,000,000 plus the aggregate amount of cash and assets (valued at fair market value) contributed by any Designated Holding Company to the Borrower after April 27, 2004 in the form of common equity; provided, that (i) no such Investment may be made at any time when a Default or Event of Default has occurred and is continuing or would result therefrom, (ii) none of the proceeds of such Investment may be used directly or indirectly to repay, repurchase, redeem or otherwise acquire or retire for value Indebtedness of any Qualified Parent Company or otherwise in a manner that would be prohibited by Section 7.6 if the Borrower or any Subsidiary (directly or indirectly) used such proceeds in such manner and (iii) Available Liquidity, shall, after giving pro forma effect to such Investment, be at least $250,000,000;
(i) any Excluded Acquired Subsidiary may make investments in any other Excluded Acquired Subsidiary;
(j) the Borrower may purchase or otherwise acquire Indebtedness of a Qualified Parent Company in connection with any Debt Repayment so long as (i) such Debt Repayment is consummated within 60 days after such purchase, (ii) the amount expended to effectuate such purchase (or, in the case of a debt-for-debt exchange, the principal amount of the Indebtedness issued in exchange for such Qualified Parent Company Indebtedness) could, on the date such purchase is made (the “Test Date”), have been distributed to a Qualified Parent Company to effectuate a Debt Repayment pursuant to Section 7.6(c), and (iii) on the date such Debt Repayment is consummated, no Default or Event of Default shall have occurred and be continuing;
(k) loans or advances to any direct or indirect parent company of the Borrower in lieu of Restricted Payments permitted by Section 7.6(d);
(l) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Subsidiaries may make Investments in any Non-Recourse Subsidiary with the proceeds of distributions from any Non-Recourse Subsidiary (other than an Escrow Borrower) concurrently with the receipt of such proceeds;
(m) the Borrower and its Subsidiaries may contribute operating assets to a Wholly Owned Subsidiary, provided that (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) a binding Contractual Obligation with a counterparty other than a member of the Charter Group to Dispose of such assets or Wholly Owned Subsidiary is in effect at the time of such contribution, (iii) such Disposition is consummated in accordance with Section 7.5(f) within five Business Days of such contribution or, if such Disposition is not so consummated, then within eight Business Days of such contribution such contribution is reversed or such Wholly Owned Subsidiary complies with Section 6.9 and immediately after giving effect (iv) such Wholly Owned Subsidiary shall not make any Investments with such assets or the proceeds thereof, including pursuant to Section 7.7(e)(ii) or (iv);
(n) Investments by the Borrower and its Subsidiaries in any Escrow Borrower or other Non-Recourse Subsidiary for purposes of funding original issue discount, upfront fees, redemption or repayment premium and interest with respect to any such Investment Escrow Incremental Term Loans or acquisitiondebt securities issued pursuant to escrow arrangements, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by to the extent such Escrow Incremental Term Loans and debt securities are intended to provide a Responsible Officer portion of the Obligor)funds to finance the Acquisition Transactions or any other Investment so long as the assets or Equity Interests to be acquired with the proceeds of such Escrow Incremental Term Loans or debt securities issued pursuant to escrow arrangements are promptly contributed or otherwise transferred to the Borrower or a Subsidiary promptly upon the use of such proceeds, and, in the case of Incremental Term Loans, if such Escrow Borrower has assumed the obligations of the Borrower with respect to any Incremental Term Loans originally funded to the Borrower resulting in such Incremental Term Loans becoming Escrow Term Loans, additional Investments in an amount not to exceed the principal amount of such Escrow Term Loans; and
(o) Investments pursuant to the Acquisition Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Cco Holdings LLC), Credit Agreement (Cco Holdings LLC)
Investments. None Make any advance, loan, extension of the Parentcredit (by way of guaranty or otherwise) or capital contribution to, the Obligor or purchase any Capital Stock, bonds, notes, debentures or other debt securities of, or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not assets constituting a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Personbusiness unit of, or make any Acquisitionother investment in, any Person (all of the foregoing, “Investments”), except in the case of Holdings and any of its Subsidiaries (other than:than any Insurance Subsidiary unless otherwise expressly included in this Section 7.08 or permitted by Section 7.17):
(a) Permitted Investments;
(b) Investments existing on the Closing Date in Subsidiaries, accounts receivable and other Investments existing on the Closing Date extensions of trade credit by Mentor and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted its Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries the ordinary course of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans business and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made Alliance Human Services in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) Guarantee Obligations permitted by Section 7.02;
(d) Investments in assets useful in the business of Mentor and its Subsidiaries made by Mentor or any of its Subsidiaries with the proceeds of any Reinvestment Deferred Amount;
(e) intercompany Investments by any Group Member in Mentor or any Person that, prior to such investment, is a Borrower or, to the extent permitted by the Syndicated Credit Agreement, any other Subsidiary;
(f) existing Investments as listed on Schedule 7.08(g);
(g) Capital Expenditures to the extent permitted under this Agreement;
(h) Permitted Acquisitions;
(i) to the extent permitted by the Syndicated Credit Agreement, the formation of and Investments received in new Subsidiaries of Mentor (other than Permitted Foreign Subsidiaries and Insurance Subsidiaries) and in connection with Permitted Acquisitions;
(j) Investments by Holdings, Mentor or any of their respective Subsidiaries in Mentor, any Borrower or, to the bankruptcy extent permitted by the Syndicated Credit Agreement, any other Person;
(k) Mentor and its Subsidiaries may receive and own Capital Stock or reorganization ofother investments acquired as non-cash consideration pursuant to dispositions permitted under Section 7.05;
(l) Mentor and its Subsidiaries may make pledges and deposits permitted under Section 7.03;
(m) Mentor and its Subsidiaries may make investments and guarantees expressly permitted under Sections 7.02, 7.04, 7.05 and 7.06;
(n) Mentor and its Subsidiaries may make an advance or settlement an investment that could otherwise be made as a Restricted Payment to the extent the related advance or investment would be permitted under Section 7.06 (it being understood that any such advance or investment shall be deemed to be and shall count as a Restricted Payment for purposes of delinquent accounts Section 7.06);
(o) Mentor and disputes with, customers its Subsidiaries may hold Investments to the extent such Investments reflect an increase in the value of Investments and suppliers, would otherwise exceed the limitations herein;
(p) Investments consisting of endorsements for collection or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case deposit in the ordinary course of business;
(jq) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 deposit accounts opened and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made maintained in the ordinary course of business;
(mr) Holdings and Mentor may acquire and hold promissory notes of employees of Holdings or its Subsidiaries in connection with such Person’s purchase of Permitted Capital Stock of Holdings;
(s) Investments received in connection with any bankruptcy or reorganization of, or any good faith settlement of delinquent accounts and disputes with, any customer or supplier arising in the ordinary course of business;
(t) Mentor may enter into Swap Agreements that are not speculative in nature to the extent otherwise permitted hereunder;
(u) any Investments relating to deferred compensation of Holdings, Mentor and their respective Subsidiaries;
(v) Investments by Mentor and its Subsidiaries in Permitted Acquisitions made with the proceeds of any Reinvestment Deferred Amounts;
(w) Investments by Mentor or any Subsidiary of Mentor in any Permitted Foreign Subsidiary (including the formation thereof), which, together with Indebtedness of Foreign Subsidiaries permitted to be outstanding pursuant to Section 7.02(h), does not exceed $3,000,000 at any time outstanding;
(x) Investments by Mentor or any Wholly-Owned Subsidiary in any Insurance Subsidiary (including in respect of the formation thereof) solely to the extent permitted by Section 7.18(b);
(y) other Investments not listed above, including, without limitation other credit and other acquisitionsextensions of credit arising in the ordinary course of Mentor’s business, in an aggregate amount not to exceed the sum of $10,000,000 at any one time; provided that, at the time each that any such Investment or acquisition is purchasedwhich later qualifies as a Permitted Acquisition shall not be counted against such amount but shall be counted towards Permitted Acquisition amounts; provided further that Investments representing loans and advances to employees of any Group Member (including for travel, made or otherwise acquired, entertainment and relocation expenses) shall not exceed $2,000,000 in the aggregate at any one time outstanding; and
(z) Investments in connection with escrow arrangements permitted pursuant to Section 7.03(w). The amount of any Investment shall be the initial amount of such Investment or the aggregate amount of all consideration paid and any addition thereto and distributions received in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as respect of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)Investment.
Appears in 2 contracts
Samples: Term Loan Agreement (Rem Consulting of Ohio, Inc.), Term Loan Agreement (Rem Arrowhead, Inc.)
Investments. None of Prior to the ParentAcquisition Closing Date, the Obligor or Borrower will not, and will not permit any other Restricted Subsidiary, and, after the Acquisition Closing Date, Parent will not, and will not permit any Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdto, make or otherwise suffer to exist any Investment in any other PersonInvestments, or make any Acquisition, other thanexcept:
(a) Permitted InvestmentsInvestments in cash and Cash Equivalents and assets that were Cash Equivalents when such Investment was made;
(b) (i) the Transactions or Investments otherwise made in accordance with or as contemplated by the Merger Agreement and the Separation Agreement and (ii) Permitted Acquisitions; provided that Acquisitions of Persons acquired by Loan Parties pursuant to this clause (b)(ii) that do not or have not become Guarantors in accordance with Section 5.11 or Section 5.12 (it being understood that an Acquisition of a Person and its subsidiaries shall be deemed an acquisition of Persons that become Guarantors for this purpose if the Persons so acquired that do become Guarantors constitute more than 50% of the Consolidated EBITDA of such Person and its subsidiaries) after the consummation of such Acquisition that are made in reliance on this clause (b)(ii) shall not exceed the greater of $225,000,000 and 15% of Consolidated EBITDA computed on a Pro Forma Basis as of the Applicable Date of Determination;
(c) (i) Investments existing on the Closing Date in SubsidiariesEffective Date, and other (ii) Investments existing contemplated on the Closing Effective Date and set forth on Schedule 6.07 6.04(c), and (ii) Investments consisting of any modification, replacement, renewal, reinvestment or extension of any such Investment; provided that the amount of any Investment permitted pursuant to this Section 6.04(c) is not increased from the amount of such Investment on the Effective Date except pursuant to the terms of such Investment (including in respect of any unused commitment), plus any accrued but not any additions thereto unpaid interest (including any capital contributionsportion thereof which is payable in kind in accordance with the terms of such modified, extended, renewed or replaced Investment) and premium payable by the terms of such Indebtedness thereon and fees and expenses associated therewith as of the Effective Date or as otherwise permitted by this Section 6.04;
(d) (i) Investments between and among any of the Loan Parties; and (ii) Investments by any Loan Party to any Restricted Subsidiary that is not a Loan Party provided that such Investments made after the Closing Date);
Effective Date pursuant to this clause (cd)(ii) investments by shall (x) constitute loans and advances made in the Parentordinary course of business or (y) constitute other Investments that do not at any one time exceed the greater of (A) $225,000,000 and (B) 15% of Consolidated EBITDA, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior Applicable Date of Determination after giving effect on a Pro Forma Basis to the proposed Investment (it being understood that for purposes of calculating amounts outstanding pursuant to this clause (d)(ii), such investments, amount shall be calculated on a net basis (ii) without duplication of the reduction of the amount of any such Equity Interests held by a Loan Party shall be pledged Investment in respect of Returns on such Investment pursuant to the extent required by the definition of the term “Collateral and Guarantee Requirement” and Investment”) giving effect to all Investments (iiiI) the aggregate amount of such investments by in the Loan Parties in, by and loans and advances by Returns to the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, from Restricted Subsidiaries that are not Loan Parties and (excluding all II) in the Loan Parties by Joint Ventures and Unrestricted Subsidiaries); provided, further, that to the extent that any such investments, loans, advances and Guarantees existing on the date hereof and permitted by Investments under this clause (bd) aboveconstitute loans or advances made to any Loan Party, such loans or advances shall be subordinated in right of payment to the Obligations upon the occurrence of an Event of Default pursuant to Section 7.01(h) shall not, or (i) or upon the acceleration of the Obligations pursuant to Section 7.01 after the occurrence of any other Event of Default;
(e) Investments made by the Parent or any Restricted Subsidiary in any Joint Venture or any Unrestricted Subsidiary in an aggregate amount not to exceed at any when made, exceed $15,000,000 at any one time outstandingthe outstanding the greater of (xA) $20,000,000 150,000,000 and (yB) 1510% of IKE-Adjusted Consolidated EBITDA as of the last day Applicable Date of the most recently ended four consecutive Fiscal Quarters Determination after giving effect on a Pro Forma Basis to each proposed Investment (it being understood that for which financial statements have been delivered purposes of calculating amounts outstanding pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by this clause (e) ), such amount shall be calculated on a net basis (without duplication of the reduction of the amount of any such Investment in respect of Returns on such Investment pursuant to the definition of “Permitted Debt” and Investment”) giving effect to all Investments (iiI) the amount of such loans and advances made by in the Loan Parties by and Returns to the Loan Parties from Restricted Subsidiaries that are not Loan Parties shall be subject to and in the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) aboveJoint Ventures and Unrestricted Subsidiaries);
(f) Investments made by any Restricted Subsidiary that is not a Loan Party in the form Parent or any Restricted Subsidiary; provided that to the extent that any such Investments constitute loans or advances made to any Loan Party, such loans or advances shall be subordinated in right of Hedge Agreements permitted under payment to the Obligations upon the occurrence of an Event of Default pursuant to Section 6.127.01(h) or (i) or upon the acceleration of the Obligations pursuant to Section 7.01 after the occurrence of any other Event of Default;
(g) Permitted Acquisitions[Reserved];
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or upon the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(i) Investments in respect of Swap Agreements not entered into for speculative purposes, Cash Management Agreements and Cash Management Services;
(j) Investments of any Person existing at the time such Person becomes a Restricted Subsidiary or consolidates, amalgamates or merges with the Parent or any Restricted 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 Restricted Subsidiary or such consolidation or merger;
(k) Investments resulting from pledges or deposits described in clause (c) or (d) of the definition of the term “Permitted Encumbrance”;
(l) Investments received in connection with the satisfaction disposition of any asset in accordance with and to the extent permitted by Section 6.05 (other than Section 6.05(d));
(m) receivables or enforcement of claims due or other trade payables owing to the Parent or any Group MemberRestricted 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 the Parent or such Restricted Subsidiary deems reasonable under the circumstances;
(n) Investments resulting from Liens permitted under Section 6.02;
(o) Investments in each case deposit accounts and securities accounts opened in the ordinary course of business;
(jp) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidationIntercompany License Agreements;
(kq) other Investments (including those of the type otherwise described herein) made after the Effective Date in an aggregate amount at any time outstanding not to exceed the greater of (x) $225,000,000 and (y) 15% of Consolidated EBITDA as of the Applicable Date of Determination after giving effect on a Pro Forma Basis to each such proposed Investment pursuant to this clause (q);
(r) Investments made as consisting of xxxx xxxxxxx money deposits in connection with a result Permitted Acquisition or other Investment permitted hereunder;
(s) Investments solely to the extent such Investments reflect an increase in the value of the receipt of noncash consideration from any Disposition of any asset in compliance with Investments otherwise permitted under this Section 6.04;
(lt) the acquisition of additional Equity Interests of Restricted Subsidiaries from minority shareholders (it being understood that to the extent that any Restricted Subsidiary that is not a Loan Party is acquiring Equity Interests from minority shareholders then this clause (t) shall not in and of itself create, or increase the capacity under, any basket for Investments by Loan Parties in any Restricted Subsidiary that is not a Loan Party);
(u) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods endorsements for collection or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made deposit in the ordinary course of business;
(ma) other Investments in any Receivables Facility or any Securitization Subsidiary in order to effectuate a Qualified Securitization Financing, including the ownership of Equity Interests in such Securitization Subsidiary and other acquisitions; provided that, at the time each such Investment (b) distributions or acquisition is purchased, made payments of Securitization Fees and purchases of Securitization Assets or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid Receivables Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing or a Receivables Facility;
(w) Investments in Equity Interests in any Subsidiary resulting from any sale, transfer or other disposition by the Parent or any Subsidiary permitted by Section 6.05, including as a result of any contribution from any parent or distribution to any Subsidiary of such acquisition Equity Interests;
(determined as set forth x) contributions to a “rabbi” trust for the benefit of employees or other grantor trust subject to claims of creditors in clause (g) the case of a bankruptcy of the definition Borrower;
(y) loans or advances to officers, partners, directors, consultants and employees of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of Parent or any Restricted Subsidiary for (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time relocation, entertainment, travel expenses, drawing accounts and similar expenditures and (B) for other purposes in the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent not to the Closing Date as of such timeexceed $15,000,000 at any time outstanding;
(nz) other Investments (including those of the type otherwise referred to herein) in an aggregate amount not to exceed the Available Amount;
(aa) Investments consisting of or resulting from Indebtedness, Liens, Restricted Payments, fundamental changes and dispositions permitted under Section 6.01 (other acquisitions; provided that (Athan Section 6.01(a)(ii) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (Ba)(iii)), Section 6.02, Section 6.03 (other than Section 6.03(a)(vi) at and (b)(viii)), Section 6.05 (other than Section 6.05(b)) and Section 6.08 (other than Section 6.08(xi)), respectively;
(bb) Loans repurchased by the time each Parent or a Restricted Subsidiary pursuant to and in accordance with Section 2.11(i) or Section 9.04, so long as such Investment Loans are immediately cancelled;
(cc) cash or acquisition property distributed from any Restricted Subsidiary that is purchasednot a Loan Party (i) may be contributed to other Restricted Subsidiaries that are not Loan Parties, and (ii) may pass through the Parent and/or any intermediate Restricted Subsidiaries, so long as all part of a series of related transactions and such transaction steps are not unreasonably delayed and are otherwise permitted hereunder;
(dd) Investments to the extent that payment for such Investments is made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection solely with such acquisition Equity Interests (determined as set forth in clause (gother than any Disqualified Equity Interests) of the definition Parent, or proceeds of “Permitted Acquisition”) shall not exceed an equity contribution initially made to the Available Amount at such time (Parent, in each case, as certified by a Responsible Officer that have not increased the Available Amount or the Cure Amount;
(ee) Guarantee obligations of the Obligor)Parent or any Restricted Subsidiary in respect of letters of support, guarantees or similar obligations issued, made or incurred for the benefit of any Restricted Subsidiary to the extent required by law or in connection with any statutory filing or the delivery of audit opinions performed in jurisdictions other than within the United States; and
(off) other Investments (i) loans and other acquisitions; provided that advances to Parent or any Parent Entity in lieu of, and not in excess of the amount of (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any other such Investment loans or acquisitionadvances or Restricted Payments in respect thereof), Restricted Payments to the Total Adjusted Net Leverage Ratio shall extent permitted to be made in accordance with Section 6.08 (other than Section 6.08(a)(xi)) or (ii) other Investments in lieu of and not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer excess of the Obligoramount of (after giving effect to any other such Investments or payments, redemptions, repurchases, retirements, terminations or cancellations of Indebtedness pursuant to Section 6.08(b)(ix).), Restricted Payments to the extent permitted to be made in accordance with Section 6.08(a)(xiv);
Appears in 2 contracts
Samples: Credit Agreement (Micro Focus International PLC), Credit Agreement (Micro Focus International PLC)
Investments. None Acquiror has delivered to the Company Parties true, correct and complete copies of the Parent, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other than:
(a) Permitted Investments;
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries each of the Parent prior fully executed Subscription Agreements entered into by Acquiror with the applicable Investors therein, pursuant to such investmentswhich (i) the PIPE Investors have committed to purchase an aggregate of no less than 2,000,000 shares of Acquiror Common Stock for $10.00 per share for an aggregate amount of no less than the PIPE Investment Amount, (ii) any such Equity Interests held by a Loan Party shall be pledged the Convertible Notes Investors have committed to purchase an aggregate principal amount of Convertible Notes of no less than the extent required by the definition of the term “Collateral and Guarantee Requirement” Convertible Notes Investment Amount, and (iii) the aggregate amount form of the Convertible Notes Indenture to be executed upon the closing of the Convertible Notes Investment. Each of the Subscription Agreements are in full force and effect (assuming, with respect to each Investor and the Company, that each such investments Subscription Agreement has been duly authorized, executed and delivered by the Loan Parties ineach applicable Investor), and loans and advances by the Loan Parties tohave not been withdrawn or terminated, or otherwise amended or modified, and Guarantees no withdrawal, termination, amendment or modification is contemplated by Acquiror. Each Subscription Agreement is and the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that Convertible Notes Indenture will be upon Closing (i) a legal, valid and binding obligation of Acquiror and, to the Indebtedness resulting therefrom is permitted by clause (e) knowledge of Acquiror, each Investor and the definition of “Permitted Debt” indenture trustee, as applicable and (ii) enforceable against Acquiror and, to the amount knowledge of such loans Acquiror, each Investor and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be indenture trustee, as applicable, subject to the limitation Enforceability Exceptions and neither the execution or delivery by any party thereto, nor the performance of any party’s obligations under any such Subscription Agreement or the Convertible Notes Indenture violates or will violate any Laws. The Subscription Agreements provide that ZF and IDX are a third-party beneficiaries thereof. There are no other agreements, side letters, or arrangements between Acquiror and any Investor relating to any Subscription Agreement or the purchase by such Investor of securities of Acquiror, that could affect the obligation of the Investors to purchase the applicable portion of the Investment Amount set forth in clause the Subscription Agreements, and, as of the date hereof, Acquiror does not know of any facts or circumstances that may reasonably be expected to result in any of the conditions set forth in any Subscription Agreement not being satisfied, or the Investment Amount not being available to Acquiror, on the Closing Date. No event has occurred that, with or without notice, lapse of time or both, would constitute a default or breach on the part of Acquiror under any material term or condition of any Subscription Agreement and, as of the date hereof, Acquiror has no reason to believe that it will be unable to satisfy on a timely basis any term or condition of closing to be satisfied by it contained in any Subscription Agreement. The Subscription Agreements contain all of the conditions precedent (c)(iiiother than the conditions contained in the other agreements related to the Transactions) above;
(e) Guarantees by to the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, Investors to purchase the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) applicable portion of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation Investment Amount set forth in clause the Subscription Agreements on the terms therein. No fees, consideration or other discounts are payable or have been agreed by Acquiror or any of its Affiliates (c)(iiiincluding, from and after the Closing, the Surviving Entities and their respective Subsidiaries) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, Investor in each case in the ordinary course respect of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result its portion of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade creditInvestment Amounts, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined except as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)Subscription Agreements.
Appears in 1 contract
Samples: Business Combination Agreement (L&F Acquisition Corp.)
Investments. None Existing Investments in the Capital Stock of the Parent, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other than:
(a) Permitted Investments;
(b) Investments existing Subsidiaries on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); . Separately provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and Borrower. DoubleVerify Inc. 400 Xxxxxxxx New York, NY 10013 Attention: Chief Financial Officer Email: txxxxxxx@xxxxxxxxxxxx.xxx With a copy to: Debevoise & Pxxxxxxx LLP 60 Xxxxxx Xxxx E New York, NY 10001 Attention: Sxxxx X. Xxxxxxxx Email: sxxxxxxxxx@xxxxxxxxx.xxx Telephone: (iii000) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE000-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been 0000 This Compliance Certificate is delivered pursuant to Section 5.04(a6.2(b) of that certain Credit Agreement, dated as of August 12, 2024, by and among DOUBLEVERIFY MIDCO, INC., a Delaware corporation (“Holdings”), DOUBLEVERIFY INC., a Delaware corporation (the “Borrower”), the Lenders and L/C Issuers party thereto, and JPMORGAN CHASE BANK, N.A. (“JPMorgan”), as Administrative Agent for the Lenders and as an L/C Issuer and the Swing Lender (as amended, restated, amended and restated, supplemented, restructured or 5.04(b) otherwise modified from time to time prior to the date hereof, the “Credit Agreement”). Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement. The undersigned, a duly authorized and acting Responsible Officer of such Investment;
(d) loans Holdings, hereby certifies, in his/her capacity as an officer of Holdings, and not in any personal capacity, as follows: I have reviewed and am familiar with the contents of this Compliance Certificate. I have reviewed the terms of the Credit Agreement and the other Loan Documents and have made, or advances caused to be made under my supervision, a review in reasonable detail of the transactions and condition of Holdings, the Borrower and their respective Subsidiaries during the accounting period covered by the Parentfinancial statements attached hereto as Attachment 1 (the “Financial Statements”). Except as set forth on Attachment 2, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) I have no knowledge of the definition existence as of “Permitted Debt” and (ii) the amount date of such loans and advances made by this Compliance Certificate, of any condition or event which constitutes a Default or an Event of Default. [Attached hereto as Attachment 3 are the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to computations regarding compliance with the limitation covenant set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations Section 7.1 of the ParentCredit Agreement.]1 [To the extent not previously disclosed to the Administrative Agent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result description of any such Person being a joint and several co-applicant with respect to any Letter change in the jurisdiction of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations organization of any Loan Party.] [To the extent not previously disclosed to the Administrative Agent, (iii) the Parent shall not Guarantee any Indebtedness or other obligation a list of any Restricted Subsidiary except for any such Guarantees under the Bond Documents material Intellectual Property consisting of United States patents, trademarks and/or copyrights (or of Indebtedness permitted by clause (bapplications therefor) issued to or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed acquired by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after since [the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the Date][the date of such acquisition, merger or consolidation;
(kthe most recent report delivered].] 1 To be included with financial statements delivered pursuant to Section 6.1(a) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with and Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g6.1(b) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)Credit Agreement.
Appears in 1 contract
Investments. None of the ParentMake any Investment, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Permitted InvestmentsInvestments constituting cash capital contributions made by (i) Parent in any Wholly-Owned Domestic Subsidiary Guarantor, (ii) a Wholly-Owned Domestic Subsidiary Guarantor in another Wholly-Owned Domestic Subsidiary Guarantor, (iii) a Subsidiary of Parent that does not guarantee any of the Obligations in another Subsidiary of Parent that does not guarantee any of the Obligations, and (iv) Parent or any Wholly-Owned Domestic Subsidiary Guarantor in a Foreign Subsidiary or in a Subsidiary of Parent that does not guarantee any of the Obligations; provided, that the aggregate amount of all Investments made during the term of this Agreement pursuant to this Section 6.06(a)(iv), plus the aggregate fair market value of all assets disposed of during the term of this Agreement pursuant to Section 6.04(g)(iv), plus the aggregate outstanding amount of all Indebtedness incurred pursuant to Section 6.01(d)(iv) shall not exceed the Shared Intercompany Basket at any time;
(b) Investments existing on cash advances to employees of any Loan Party for normal business expenses not to exceed at any time outstanding $250,000 in the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date)aggregate;
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries)Investments constituting Permitted Portfolio Acquisitions; provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of that, notwithstanding anything to the Parent prior to such investmentscontrary in this Agreement, (ii) any such Equity Interests held by a Loan Party from and after the Fifth Amendment Effective Date, no Permitted Portfolio Acquisitions shall be pledged permitted to be made using proceeds of Collateral or of any Loans until the extent required by the definition earlier of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom date that is permitted by clause (e) of 90 days following the definition of “Permitted Debt” Fifth Amendment Effective Date and (ii) the amount consummation of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause a SPAC Transaction.
(c)(iiid) above[reserved];
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary Investments in securities of Indebtedness or other obligations Account Debtors of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect Loan Party received pursuant to any Letter plan of Credit reorganization or any other letter similar arrangement upon the bankruptcy or insolvency of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant Account Debtors as settlement for accounts receivable owing by such Account Debtors to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any applicable Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) aboveParties;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12cash and Cash Equivalents;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances Investments in joint ventures in businesses related or complementary to directors, officers and employees the Business Operations of any Group Member that are expected at the time Loan Party or any Subsidiary of such advances any Loan Party (not including Excluded Subsidiaries) of up to be treated as expenses of such Group Member for accounting purposes and that are made $500,000 in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each caseaggregate, so long as immediately prior to and after giving effect to such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of Investment (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would otherwise result therefrom and (Bii) at the time each such Investment or acquisition Borrower is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio compliance on a pro forma basis (in with each case, as certified by a Responsible Officer of the Obligorcovenants set forth in Section 6.18 recomputed for the most recently ended month for which information is available using the financial covenant levels for the then most recently completed testing date for each such covenant (or using the first testing date for a particular covenant if the first testing date for such covenant has not yet occurred);
(h) lease, utility and other similar deposits made by the applicable Loan Party in the Ordinary Course of Business; and
(i) Investments existing on the date of this Agreement and described on Schedule 6.06 of the Disclosure Schedules. Notwithstanding any of the foregoing, other than with respect to Managed Transactions and Pass Through Transactions permitted by this Agreement, no Loan Party shall transfer any Collateral to, or make an Investment consisting of the transfer or contribution of Collateral to any Excluded Subsidiary without the express prior written consent of the Agent.
Appears in 1 contract
Samples: Forbearance Agreement and Ninth Amendment to Credit Agreement (Unifund Financial Technologies, Inc.)
Investments. None of the ParentMake any Investments, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Permitted InvestmentsInvestments held by such Loan Party or such Subsidiary in the form of Cash Equivalents;
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on as of the Closing Date and set forth on in Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date)8.02;
(c) investments by the ParentInvestments consisting of advances or loans to directors, the Obligor and the other Restricted Subsidiaries officers, employees, agents, customers or suppliers in Equity Interests in their Restricted Subsidiaries an aggregate principal amount (including as capital contributions Investments of such type set forth in Schedule 8.02) not to such Restricted Subsidiaries); provided that exceed $30,000,000 at any time outstanding;
(id) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) Investments in any such Equity Interests held by Person which is a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of giving effect to such Investment;
(de) loans Investments consisting of extensions of credit in the nature of accounts receivable or advances made notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(f) Guarantees constituting Indebtedness permitted by Section 8.03 (other than Section 8.03(c)), to the Parent, extent such Guarantees also constitute Investments;
(g) the Obligor Wireless Acquisition and (without double-counting for purposes of determining compliance with the numerical limit applicable hereunder) Investments in one or any other Restricted Subsidiary more Wholly Owned Subsidiaries to any Restricted Subsidiaryenable such Subsidiaries to make the Wireless Acquisition; provided that (i) the Indebtedness resulting therefrom is permitted aggregate cash consideration paid by clause (e) of the definition of “Permitted Debt” Consolidated Parties does not exceed $125,000,000 and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties upon consummation thereof, Wireless LLC shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted a Wholly Owned Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted AcquisitionsBorrower;
(h) Any payrollInvestments consisting of an Acquisition (other than the Wireless Acquisition) by the Borrower or any Subsidiary of the Borrower and (without double-counting for purposes of determining compliance with the numerical limit applicable hereunder) Investments in Wholly-Owned Subsidiaries to enable such Subsidiaries to make such Acquisitions; provided that
(i) the Property acquired (or the Property of the Person acquired) in such Acquisition is used or useful in the same or a similar line of business as the Borrower and its Subsidiaries were engaged in on the Closing Date (or any reasonable extensions or expansions thereof);
(ii) in the case of an Acquisition of the Capital Stock of another Person, travelthe board of directors (or other comparable governing body) of such other Person shall have duly approved such Acquisition;
(iii) if the aggregate purchase price to be paid by the Borrower and/or its Subsidiaries in connection with such Acquisition exceeds $50,000,000, entertainmentthe Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, relocation upon giving effect to such Acquisition on a Pro Forma Basis, the Loan Parties would be in compliance with the financial covenants set forth in Section 8.11 as of the most recent fiscal quarter end with respect to which the Administrative Agent has received the Required Financial Information;
(iv) no Default shall have occurred and similar advances be continuing both before and immediately after the time such Acquisition is consummated;
(v) if such transaction involves the purchase of an interest in a partnership between the Borrower (or a Subsidiary of the Borrower) as a general partner and entities unaffiliated with the Borrower or such Subsidiary as the other partners, absent any adverse tax consequences for the Borrower or any Subsidiary, such transaction shall be effected by having such equity interest acquired by a holding Person directly or indirectly wholly-owned by the Borrower and newly formed for the sole purpose of effecting such transaction;
(vi) the aggregate consideration (including cash and non-cash consideration, any assumption of Indebtedness and any earn-out payments, but excluding consideration consisting of (A) any Capital Stock of the Borrower issued to directorsthe seller of the Capital Stock or Property acquired in such Acquisition, officers and employees (B) amounts not in excess of the aggregate cumulative proceeds of any Group Member Equity Issuance by the Borrower consummated subsequent to the Closing Date and not more than 365 days prior to the date that are expected such Acquisition is consummated, provided that such amounts have not previously served as the basis for allowing a Restricted Payment pursuant to Section 8.06(d), any other Acquisition pursuant to this subsection (h)(vi) or any prepayment under Section 8.12(b)(ii), and (C) amounts not in excess of the aggregate cumulative proceeds of any Disposition, Excluded Disposition or Involuntary Disposition consummated subsequent to the Closing Date and not more than 365 days prior to the date that such Acquisition is consummated, provided that such amounts have not previously served as the basis for allowing a Restricted Payment pursuant to Section 8.06(d) or any other Acquisition pursuant to this subsection (h)(vi)) paid by the Consolidated Parties for all such Acquisitions occurring after the Closing Date (net, in the case of each such Acquisition, of return of capital received at or prior to the time of such advances determination) shall not exceed $250,000,000;
(i) Investments made with the proceeds of an Equity Issuance by the Borrower so long as the proceeds thereof are not otherwise required to be treated as expenses applied to the prepayment of the Loans pursuant to the terms of this Agreement;
(j) Investments in a Receivables Financing SPC made in connection with a Permitted Receivables Financing;
(k) Investments in Foreign Subsidiaries in an aggregate outstanding amount at any time for all such Group Member Investments made after the Closing Date pursuant to this subsection (k) not to exceed $5,000,000;
(l) in addition to the Wireless Acquisition, (i) Investments in Wireless LLC resulting in Wireless LLC owning Spectrum Assets in an aggregate outstanding amount at any time for accounting purposes all such Investments made after the Closing Date pursuant to this subsection (l)(i) not to exceed $200,000,000 and that are (ii) other Investments in Wireless LLC in an aggregate outstanding amount at any time for all such Investments made after the Closing Date pursuant to this subsection (l)(ii) not to exceed $30,000,000;
(m) Investments in CBT and in any Subsidiary of CBT;
(n) Investments in Excluded Subsidiaries consisting of Guarantees of operating leases entered into in the ordinary course of business or of other obligations not constituting Indebtedness incurred in the ordinary course of business;
(io) loans and advances by Loan Parties to Excluded Subsidiaries evidenced by promissory notes that have been pledged and delivered to the Administrative Agent in accordance with the terms of the Security Agreement;
(p) Investments received in connection with Joint Ventures (in addition to Investments permitted pursuant to clauses (g), (l), (n) and (o) above and any Wireless Disposition) in an aggregate outstanding amount at any time for all such Investments made after the bankruptcy or reorganization ofClosing Date not to exceed $200,000,000; provided, or settlement however, that no more $50,000,000 of delinquent accounts and disputes with, customers and suppliers, or such Investments may be made in connection with the satisfaction or enforcement of claims due or owing to any Group MemberJoint Ventures which are not Subsidiaries;
(q) Investments by Subsidiaries which are Joint Ventures;
(r) Investments by BRFS LLC in a Consolidated Party and/or by a Consolidated Party in BRFS, in each case made in the ordinary course form of businessintercompany debt and for cash management purposes in connection with cash management system of the Borrower and its Subsidiaries;
(js) to the extent constituting or resulting in an Investment, any Wireless Disposition;
(t) other Investments held not otherwise permitted by this Section 8.02 in an aggregate outstanding amount at any Restricted Subsidiary the Equity Interests in which are acquired time for all such Investments made after the Closing Date pursuant to this subsection (t) not to exceed $30,000,000; and
(u) any Eligible Reinvestment of the proceeds of any Involuntary Disposition as contemplated by Section 7.07(b) or of any Disposition as contemplated by Section 8.05(b)(vii). Notwithstanding any provision to the contrary set forth in compliance with this Agreement (including, without limitation, the definition of “Joint Venture” set forth in Section 6.07 or held 1.01), the Disposition by any Person merged into of the Consolidated Parties of any portion (but not all) of the Capital Stock of any Wholly Owned Subsidiary acquired or consolidated with any Group Member created after the Closing Date shall be deemed to constitute an Investment in compliance with Section 6.06 and this Section 6.07, a Joint Venture in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) book value of the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as Capital Stock of such time and (B) Person retained by the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and Consolidated Parties immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)Disposition.
Appears in 1 contract
Investments. None A. At or prior to 12:30 p.m., Eastern standard time, on the Deposit Date, the Escrow Agent shall apply sufficient funds deposited by the Issuer pursuant to Section 2.01 to the purchase of the ParentDefeasance Securities described in (and pursuant to) the subscriptions reproduced in Exhibit A, as an investment of such funds held for the credit of the Escrow. The Escrow Agent is hereby authorized to file such subscriptions and other documents supplemental thereto as may be required to consummate such investment. No other funds deposited to the Escrow, including deposits made pursuant to Section 2.02, shall be invested by the Escrow Agent, except as described in this Section and Section 4.02.
B. The Provider has guaranteed delivery of the Defeasance Securities to the Escrow Agent on or before 12:30 p.m., Eastern standard time, on the Deposit Date. By agreement with the Escrow Agent, if the Provider fails to deliver any of the Defeasance Securities that it has offered by 12:30 p.m., Eastern standard time on the Deposit Date, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant Provider has agreed to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer wire an amount in cash equal to exist any Investment in any other Person, or make any Acquisition, other than:
(a) Permitted Investments;
the total cash flows from the Defeasance Security that the Provider failed to deliver minus (b) Investments existing on the Closing Date cost of that Defeasance Security as specified in Subsidiariesthe agreement with the Escrow Agent by 1:30 p.m., and other Investments existing on Eastern standard time. If the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after Provider fails to deliver the Closing Date);
(c) investments by the ParentDefeasance Securities as described in this Subsection, the Obligor and Provider may deliver the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions Defeasance Securities under certain conditions according to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries its agreement with the Escrow Agent.
C. The Escrow Agent shall, at the written request of the Parent prior to such investmentsIssuer, (ii) any such Equity Interests held by a Loan Party shall be pledged invest all money credited to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are Escrow which is not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered used to purchase Defeasance Securities described in Exhibit A pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made 4.01A in Defeasance Securities specified by the Parent, Issuer and which the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) Issuer certifies mature no later than the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that next date payments are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined Refunded Obligations as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such timeExhibit A, minus (ii) the sum of (A) the aggregate amount of Investments made assuming no further reinvestments pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;Section 4.02.
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquiredD. Whenever any funds held hereunder are invested in any Defeasance Security, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall Escrow Agent shall, not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at later than the time of payment for such Defeasance Security, (1) take (or cause its agent to take) possession thereof in the case of Defeasance Security evidenced by certificates, (2) in the case of registered obligations evidenced by certificates, receive (or cause its agent to receive) either due endorsement thereof by or a power of attorney executed by the registered owner thereof authorizing transfer of registration thereof to the Escrow Agent, as the case may be, or in blank, and immediately after giving effect (3) in the case of book entry securities not evidenced by a certificate, receive (or cause its agent to receive) evidence of transfer of ownership on the books kept for registration thereof to the Escrow Agent, as the case may be, except that the requirements of Clauses (1), (2), and (3) need not be met prior to payment for any Defeasance Security if the Escrow Agent holds a binding obligation for the purchase thereof which is collateralized by a Defeasance Security which complies with the requirements of such Investment Clauses and which bears rights to payment in not less than the amounts and by not later than the dates for payments on the Defeasance Security for which payment is made.
E. Concurrently with the delivery of amounts deposited under the Debt Repayment Account in the Indenture, there may be substituted at the written direction of the Issuer, cash and/or Defeasance Securities other than any of the Defeasance Securities listed in Exhibit A hereto, but only if there is delivered to the Escrow Agent a certificate of an Accountant containing the statement required by Section 4.02A and an Opinion of Counsel containing the statement required by Section 4.02B. The Escrow Agent may at any time thereafter substitute any Defeasance Securities listed in Exhibit A hereto which, as permitted by the preceding sentence, were not deposited to the credit of the Escrow Fund concurrently with the initial delivery of amounts for the cash or acquisitionDefeasance Securities which were so deposited; provided, however, that the Escrow Agent shall be under no obligation to so do except upon the written direction of, and at the sole expense of, the Total Adjusted Net Leverage Ratio shall not exceed Issuer and that the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer Escrow Agent is required to receive further verification of the Obligor).accountant as to the sufficiency of the Escrow as required by Section 4.02A.
Appears in 1 contract
Samples: Escrow Agreement
Investments. None The Borrower will not, and will not permit any of the Parentits Subsidiaries to, the Obligor make, incur, assume or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, whether done in a single transaction or make any Acquisitiona series of related transactions, other thanexcept:
(a) Permitted Investments;
(b) Investments existing on the Closing Date Date;
(b) Cash Equivalent Investments or Investments (as defined in Subsidiaries, and the High Yield Indentures) by a Restricted Subsidiary in the Borrower or any other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date)Restricted Subsidiary;
(c) investments Investments by the Parent, Borrower in any of its Subsidiaries or in any Person that becomes a Subsidiary as a result of such Investment or in any Investment Joint Venture of the Obligor and Borrower or Investments by the other Restricted Borrower's Subsidiaries in Equity Interests other Subsidiaries or in their Restricted any Person that becomes a Subsidiary as a result of such Investment or in any Investment Joint Venture of the Borrower, whether now existing or hereafter organized in lines of business of the Borrower and its Subsidiaries permitted under Section 8.2.1 by way of contributions to capital or loans or advances (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries guarantees and other forms of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged Contingent Liabilities to the extent required by that the definition occurrence of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and being guaranteed or supported would otherwise be permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investmenthereunder);
(d) loans or advances made Investments by the Parent, the Obligor Borrower or any other Restricted Subsidiary of its Subsidiaries constituting contributions of the stock or assets of CES to any Restricted SubsidiaryPersons that are neither Subsidiaries of the Borrower nor Investment Joint Ventures of the Borrower in connection with the establishment of a trading joint venture or similar arrangement; provided that (i) no such Investment shall be permitted hereunder unless the Indebtedness resulting therefrom is permitted by clause (e) equity interests of the definition of “Permitted Debt” and (ii) Borrower in such trading joint venture or similar arrangement are pledged by the amount Borrower to the Collateral Trustee for the benefit of, among others, the Lenders pursuant to a pledge agreement to be executed concurrently with the making of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;Investment; and
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint from and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each caseDate, in the ordinary course of business, and (iii) notes receivable of, Investments by the Borrower or prepaid royalties and other extensions any of credit to, customers and suppliers its Subsidiaries in Persons that are not Affiliates Subsidiaries of the Borrower or Investment Joint Ventures of the Borrower so long as such Persons are engaged only in permitted lines of business of the Borrower and its Subsidiaries and lines of business related thereto and so long as no such single Investment (or series of related Investments) exceeds 5% of the Borrower's consolidated tangible assets as of the end of the most recent Fiscal Quarter for which the Borrower has delivered the financial statements required under Section 8.1.1 hereof and the aggregate of all such Investments at any Group Member and that are made in time outstanding does not exceed 10% of the ordinary course Borrower's consolidated tangible assets as of business;the end of the most recent Fiscal Quarter for which the Borrower has delivered the financial statements required under Section 8.1.1 hereof; provided, however, that
(mf) other Investments and other acquisitions; provided that, at any Investment which when made complies with the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) requirements of the definition of “Permitted Acquisition”the term "Cash Equivalent Investment" may continue to be held notwithstanding that such Investment if made thereafter would not comply with such requirements; and
(g) no Investment otherwise permitted by clauses (c), (d) or (e) shall not exceed an amount equal be permitted to be made if, immediately after giving effect thereto, any Material Adverse Effect or any Default (iother than a Nonmaterial Subsidiary Default) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)continuing.
Appears in 1 contract
Samples: Credit Agreement (Calpine Corp)
Investments. None of the Parent, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), Group Companies will hold, make or otherwise suffer to exist acquire, any Investment in any other Person, or make any Acquisition, other thanexcept the following:
(a) Permitted Investments;
(bi) Investments existing on the Closing Date date hereof in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Persons which are Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to Investments after the date of such Investmenthereof in any Wholly-Owned Domestic Restricted Subsidiary;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor Borrower or any other Domestic Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint Borrower may invest in cash and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, Cash Equivalents;
(iii) the Parent shall not Guarantee any Indebtedness or other obligation of Borrower and any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition Borrower may acquire and hold receivables owing to them, if created or acquired in the ordinary course of the term “Permitted Debt”, business and payable or dischargeable in accordance with customary trade terms;
(iv) the aggregate amount Borrower and each Restricted Subsidiary may acquire and own Investments (including Indebtedness obligations) received in connection with the bankruptcy or reorganization of Indebtedness suppliers and customers and in settlement of delinquent obligations of, and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payrolldisputes with, travel, entertainment, relocation customers and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made suppliers arising in the ordinary course of business;
(iv) Investments received in connection with loans and advances by the bankruptcy or reorganization of, or settlement Borrower and its Restricted Subsidiaries to employees of delinquent accounts the Borrower and disputes with, customers its Restricted Subsidiaries for moving and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Membertravel and other similar expenses, in each case in the ordinary course of business, in an aggregate principal amount not to exceed $500,000 at any time outstanding (determined without regard to any write-downs or write-offs of such loans and advances);
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (iivi) deposits made in connection with by the purchase Borrower or any of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are its Restricted Subsidiaries made in the ordinary course of businessbusiness consistent with past practices to secure the performance of obligations in the ordinary course of business shall be permitted;
(mvii) other Investments and other acquisitions; provided that, at Holdings may make equity contributions to the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) capital of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such timeBorrower;
(nviii) other the Borrower may make Investments in any of its Wholly-Owned Domestic Restricted Subsidiaries and other acquisitionsany Restricted Subsidiary of the Borrower may make intercompany loans and advances to the Borrower or any Wholly-Owned Domestic Restricted Subsidiary of the Borrower; provided that (A) no Specified Default each item of intercompany Indebtedness shall be evidenced by a promissory note in the form of Exhibit H hereto, (B) each promissory note evidencing intercompany loans and advances made by a Foreign Subsidiary or Event a non-Wholly-Owned Domestic Restricted Subsidiary to the Borrower or a Wholly-Owned Domestic Restricted Subsidiary of Default the Borrower shall have occurred contain the subordination provisions set forth in Exhibit I hereto and (C) each promissory note evidencing intercompany loans and advances (other than promissory notes held by Foreign Subsidiaries, except to the extent provided in Section 6.12(d)) shall be continuing pledged to the Collateral Agent pursuant to the Pledge Agreement;
(ix) the Borrower and its Restricted Subsidiaries may make Investments in any Foreign Subsidiary or would result therefrom any non-Wholly-Owned Domestic Restricted Subsidiary of the Borrower (A) in the case of Investments by the Borrower or any Wholly-Owned Domestic Restricted Subsidiary of the Borrower, in an aggregate amount, when taken together with the aggregate consideration theretofore paid since the Closing Date by the Borrower and its Restricted Subsidiaries in respect of Permitted Business Acquisitions of Foreign Subsidiaries and non-Wholly-Owned Domestic Restricted Subsidiaries pursuant to clause (xii) below, not exceeding $5,000,000 for all such Investments occurring after the Closing Date, and (B) at to the time each extent such Investment Investments arise from the sale of inventory in the ordinary course of business by the Borrower or acquisition is purchased, made such Restricted Subsidiary to such Foreign Subsidiary or otherwise acquired, non-Wholly-Owned Domestic Restricted Subsidiary for resale by such Foreign Subsidiary or non-Wholly-Owned Domestic Restricted Subsidiary (including any such Investments resulting from the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) extension of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at payment terms with respect to such time (in each case, as certified by a Responsible Officer of the Obligorsales); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event each item of Default intercompany Indebtedness shall have occurred and be continuing or would result therefrom evidenced by a promissory note in the form of Exhibit H hereto and (B) at each promissory note evidencing intercompany loans and advances (other than promissory notes (x) issued by Foreign Subsidiaries of the time Borrower to the Borrower or any of its Domestic Restricted Subsidiaries or (y) held by Foreign Subsidiaries of the Borrower, in each case except to the extent provided in Section 6.12(d)) shall be pledged to the Collateral Agent pursuant to the Pledge Agreement;
(x) the Borrower and immediately after giving effect its Restricted Subsidiaries may make Investments in Innovative Funds Transfer, LLC (A) in the case of Investments by the Borrower or any Wholly-Owned Domestic Restricted Subsidiary of the Borrower, in an aggregate amount (determined without regard to any write-downs or write-offs of any such Investment Investments constituting Indebtedness) at any one time outstanding not exceeding $10,000,000 and (B) to the extent such Investments arise from the sale of inventory in the ordinary course of business by the Borrower or acquisitionsuch Subsidiary to Innovative Funds Transfer, LLC for resale by Innovative Funds Transfer, LLC (including any such Investments resulting from the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer extension of the Obligor).payment terms with respect to such
Appears in 1 contract
Samples: Credit Agreement (Global Cash Access Holdings, Inc.)
Investments. None of the ParentThe Borrower will not, the Obligor or nor will it permit any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdto, make or otherwise suffer to exist any Investment Investments (including without limitation, loans and advances to, and other Investments in, Subsidiaries), or commitments therefor, or to create any Subsidiary or to become or remain a partner in any other Personpartnership or joint venture, or make any Acquisition, other thanexcept:
(a) Permitted Investments;Cash Equivalent Investments and Investments made pursuant to the Borrower’s Investment Policy and Guidelines delivered to the Administrative Agent and the Lenders as of the Effective Date (with such changes thereto as approved by the Administrative Agent).
(b) Investments existing in Subsidiaries in existence on the Closing OmnibusSecond Amendment Effective Date in Subsidiaries, and other Investments existing in existence on the Closing Date date hereof and set forth on described in Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);6.12.
(c) investments Investments constituting the Phoenix Acquisition, the Freightquote Acquisition or Permitted Acquisitions (including, without limitation, any nominal amounts invested by the ParentBorrower or a Subsidiary thereof to capitalize a new Subsidiary formed to consummate the applicable Acquisition, together with any incidental amounts required to be paid as part of the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries formation process for such Subsidiary).
(including as capital contributions to such Restricted Subsidiaries); provided that d) Investments by (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investmentsLoan Parties in other Loan Parties, (ii) any such Equity Interests held by a non-Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” Subsidiaries in other non-Loan Party Subsidiaries, and (iii) non-Loan Party Subsidiaries in Loan Parties.
(e) The repurchase of capital stock and other securities of the Borrower.
(f) Other Investments, provided that the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are Investments does not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 1520% of IKE-Adjusted EBITDA Consolidated Net Worth (as determined as of the last day of the most recently ended four consecutive Fiscal Quarters fiscal quarter for which financial statements have been delivered pursuant to under Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) 6.1). In determining the amount of such loans Investments permitted under this clause (f), loans, advances, bonds, notes, debentures and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties similar Investments shall be subject to taken at the limitation set forth principal amount thereof then remaining unpaid, and stocks, mutual funds, partnership interests and similar Investments shall be taken at the original cost thereof (regardless of any subsequent appreciation or depreciation therein) net of any cash distributions in clause (c)(iii) above;respect thereof.
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(fg) Investments comprised of capital contributions (whether in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payrollcash, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization ofa note, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing other assets) to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made Qualified Receivables Entity or otherwise acquired, the aggregate amount resulting from transfers of assets permitted by Section 6.11(d) to such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)Qualified Receivables Entity.
Appears in 1 contract
Investments. None of the Parent, the Obligor Holdings and Borrower shall not and shall not cause or any other Restricted Subsidiary shall purchase permit Borrower’s Subsidiaries to directly or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, indirectly make or otherwise suffer to exist own any Investment in any other Person, or make any Acquisition, other thanPerson except:
(a) Permitted InvestmentsBorrower and its Subsidiaries may make and own Investments in Cash Equivalents and hold cash in deposit accounts or securities accounts in the ordinary course of business so long as the Borrower and its Subsidiaries have complied with the requirements set forth in the Security Agreement with respect to such accounts to the extent applicable;
(b) Investments existing on Holdings and its Subsidiaries may make intercompany loans to each other to the Closing Date in Subsidiaries, extent permitted under Sections 3.1(b) and other (h);
(c) Borrower and its Subsidiaries may hold the Investments existing on the Closing Date and set forth identified on Schedule 6.07 (but not 3.3, plus any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and otherwise permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to this Section 5.04(a) or 5.04(b) prior to the date of such Investment3.3;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” Borrower and (ii) the amount of such loans its Subsidiaries may acquire and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary hold Investments (including any such Guarantees arising as a result debt obligations) received in connection with the bankruptcy or reorganization of any such Person being a joint suppliers and several co-applicant with respect to any Letter customers and in settlement of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other delinquent obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”of, and (iv) the aggregate amount of Indebtedness other disputes with, customers and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made suppliers arising in the ordinary course of business;
(ie) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts Borrower and disputes with, customers its Subsidiaries may enter into Interest Rate Agreements and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of businessOther Hedging Agreements as permitted under Section 3.1;
(jf) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 Borrower and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) its Subsidiaries may make deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of businessbusiness consistent with past practices to suppliers or servicers and to secure the performance of leases;
(mg) other Investments Borrower and its Subsidiaries may incur guarantees permitted by Section 3.4;
(h) Borrower and its Subsidiaries may make loans and advances to employees for moving, entertainment, travel and other acquisitions; provided that, at similar expenses of Borrower and its Subsidiaries in the time each such Investment or acquisition is purchased, made or otherwise acquired, ordinary course of business not to exceed $2,000,000 in the aggregate amount at any time outstanding;
(i) Holdings may make Investments in Borrower, (ii) Borrower may make Investments in any Subsidiary that is a Guarantor and any Subsidiary that is a Guarantor may make Investments in any other Subsidiary that is a Guarantor, and (iii) any Subsidiary that is not a Guarantor may make Investments in any other Subsidiary that is not a Guarantor.
(j) Borrower and its Subsidiaries may hold Investments consisting of such Investment or the aggregate amount of all non-cash consideration paid received in connection with such acquisition Asset Dispositions permitted under Section 3.7(b)(iii);
(determined k) Borrower and its Subsidiaries may effect Permitted Acquisitions in accordance with the requirements of Section 3.6;
(l) Borrower and its Domestic Subsidiaries may make Investments in any Foreign Subsidiary so long as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of such Investments made pursuant to this clause (m) subsequent to in the Closing Date as of such time and then current Fiscal Year plus (B) the aggregate amount of all Available Amount Expenditures based on usage intercompany Indebtedness pursuant to Section 3.1(b)(iii) incurred in such Fiscal Year by Foreign Subsidiaries and not yet repaid plus (C) the aggregate amount of Contingent Obligations incurred by Borrower or any Domestic Subsidiary for the benefit of any Foreign Subsidiary in such Fiscal Year pursuant to Sections 3.4(g) and (h) which remain outstanding at such time does not exceed the Foreign Investment Basket for such Fiscal Year and (ii) no Event of Default exists at the time of the Available Equity Amount subsequent to making of any such Investment or would result therefrom;
(m) Holdings may hold promissory notes issued by any officer or employee of Holdings or any of its Subsidiaries solely as consideration for the Closing Date as purchase of such timeHoldings Common Stock;
(n) other Borrower may create new Subsidiaries in accordance with Section 3.14 so long as any Investment made in any new Foreign Subsidiary is otherwise permitted by this Section 3.3;
(o) Borrower and its Subsidiaries may make Investments and other acquisitions; provided that (A) no Specified Default constituting endorsements for collection or Event deposit in the ordinary course of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor)business; and
(p) Borrower and its Subsidiaries may make other Investments not expressly permitted by clauses (a) through (o) other Investments above so long as (i) both before and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisitionon a Pro Forma Basis, Borrower is in pro forma compliance with the Total Adjusted Net Leverage Ratio shall covenants set forth in Section 4.2 and 4.3, (ii) such Investments do not exceed the Specified Total Adjusted Net Leverage Ratio (A) if, both before and after giving effect to any such Investment on a Pro Forma Basis, Borrower has a pro forma basis Leverage Ratio of not more than 2.0 to 1.0, then (I) $35,000,000 in each casethe aggregate in any Fiscal Year or (II) $75,000,000 in the aggregate at any time outstanding or (B) if, as certified by either before or after giving effect to any such Investment on a Responsible Officer Pro Forma Basis, Borrower has a pro forma Leverage Ratio of more than 2.0 to 1.0, (I) $25,000,000 in the Obligor)aggregate in any Fiscal Year or (II) $50,000,000 in the aggregate at any time outstanding and (iii) after giving effect to any such Investment (and any Advances funded or other amounts expended in connection therewith) the Borrower will have Required Availability of not less than $15,000,000.
Appears in 1 contract
Samples: Credit Agreement (TNS Inc)
Investments. None of the ParentMake or hold any Investments, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Permitted InvestmentsInvestments held by the Borrower and its Restricted Subsidiaries in the form of cash or Cash Equivalents;
(b) Investments existing on advances to officers, directors and employees of the Closing Date Borrower and Restricted Subsidiaries in Subsidiariesan aggregate amount not to exceed $4,000,000 at any time outstanding (determined without regard to any write-downs or write-offs of such advances), for travel, entertainment, relocation and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date)analogous ordinary business purposes;
(ci) investments Investments by Holdings, the Borrower and its Subsidiaries in their respective Subsidiaries outstanding on the date hereof, (ii) additional Investments by Holdings in the Borrower, (iii) additional Investments by the Parent, the Obligor Borrower and the other its Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries Loan Parties (including as capital contributions to such Restricted Subsidiariesother than Holdings); provided that , (iiv) such Restricted Subsidiaries are additional Investments by Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Borrower that are not Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and in other obligations of, Restricted Subsidiaries that are not Loan Parties, (v) additional Investments by the Borrower and its Restricted Subsidiaries in Restricted Subsidiaries of the Borrower that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on made after the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 Closing Date in an aggregate amount outstanding at any time outstandingthe greater not to exceed $10,000,000 (determined without regard to any write-downs or write-offs of (xsuch Investments) $20,000,000 plus any amount required by applicable law to maintain a net minimum capital requirement or otherwise comply with applicable law and (yvi) 15% Investments in the form of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) loans or 5.04(b) prior advances made by any Restricted Subsidiary that is not a Loan Party to the date of Borrower or any other Loan Party (other than Holdings), provided that such Investmentloans and advances shall be unsecured and subordinated to the Secured Obligations on terms reasonably acceptable to the Administrative Agent;
(d) loans Investments consisting of extensions of credit in the nature of accounts receivable or advances made by notes receivable arising from the Parentgrant of trade credit or deposits, prepayments or other credits to suppliers in the Obligor ordinary course of business, and Investments received in satisfaction or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject partial satisfaction thereof from financially troubled account debtors to the limitation set forth extent reasonably necessary in clause (c)(iii) aboveorder to prevent or limit loss;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) aboveSection 7.02;
(f) Investments existing on the date hereof (other than those referred to in the form of Hedge Agreements permitted under Section 6.127.03(c)(i)) and set forth on Schedule 7.03;
(g) Permitted Acquisitions;
(h) Any payrollInvestments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, traveland other disputes with, entertainment, relocation customers and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made suppliers arising in the ordinary course of business;
(i) other Investments received in connection with the bankruptcy an aggregate amount at any time outstanding not to exceed $5,000,000 in any fiscal year; provided no Default or reorganization of, or settlement Event of delinquent accounts Default shall have occurred and disputes with, customers be continuing both before and suppliers, or in connection with the satisfaction or enforcement of claims due or owing after giving effect to any Group Member, in each case in the ordinary course of businesssuch Investment;
(j) Investments arising from deposits made in the ordinary course of business securing obligations or performance under real estate or personal property leases;
(k) other Investments in an unlimited amount, provided that after giving pro forma effect to each such Investment, the Consolidated Net Leverage Ratio shall be no greater than 3.00 to 1.00 for the most recently ended Measurement Period for which financial statements are required to have been delivered pursuant to Section 6.01(a) or (b); provided further no Default or Event of Default shall have occurred and be continuing both before and after giving effect to any Investment;
(l) Investments consisting of any xxxx xxxxxxx money deposits made in connection with any letter of intent or purchase agreement with respect to a Permitted Acquisition;
(m) Investments held by any Restricted Subsidiary the Equity Interests a Person acquired in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, a Permitted Acquisition so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation Permitted Acquisition and were in existence on the date of such acquisition, merger or consolidationPermitted Acquisition;
(kn) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance Swap Contracts permitted hereunder in accordance with Section 6.047.02(f);
(lo) Investments consisting of (i) extensions of trade credit, (ii) deposits made non-cash consideration received in connection with Dispositions permitted hereunder in accordance with Section 7.05(e);
(p) the purchase endorsement of goods or services or the performance of leases, licenses or contracts, in each case, instruments for collection in the ordinary course of business, business to the extent deemed an Investment; and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at notwithstanding anything to the time each such Investment or acquisition is purchasedcontrary contained herein, made or otherwise acquired, Investments by the aggregate amount of such Investment or the aggregate amount of all consideration paid Borrower and its Restricted Subsidiaries in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) Unrestricted Subsidiaries shall not exceed 7.5% of Consolidated EBITDA for the most recently ended Measurement Period for which financial statements are required to have been delivered pursuant to Section 6.01(a) or (b) in an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such at any time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)outstanding.
Appears in 1 contract
Investments. None of the Parent, the Obligor The Credit Parties shall not and shall not cause or any other Restricted Subsidiary shall purchase permit their Subsidiaries to directly or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, indirectly make or otherwise suffer to exist own any Investment in any other Person, or make any Acquisition, other thanPerson except:
(a) Permitted InvestmentsParent Borrower and its Subsidiaries may make and own Investments in cash and Cash Equivalents; provided that to the extent required by Section 2.9, such Investments shall be permitted only to the extent such cash and Cash Equivalents are maintained in a deposit account or securities account (as applicable) subject to a Control Agreement;
(b) Investments existing on the Closing Date consisting of intercompany loans, advances or capital contributions made by (i) any Borrower to another Borrower, (ii) Parent Borrower or any other Credit Party to any Subsidiary of Parent Borrower that is not a Credit Party in Subsidiariesan aggregate amount not to exceed $1,000,000 at any one time outstanding, and (iii) any Subsidiary of Holdings that is not a Credit Party to (A) a Credit Party or (B) any other Subsidiary of Holdings that is not a Credit Party; provided that the obligations of any Credit Party pursuant to the foregoing clause (iii) shall be expressly subordinated to the Obligations of such Credit Party under the Loan Documents in a manner reasonably satisfactory to the Agent;
(c) Parent Borrower and its Subsidiaries may make loans and advances to employees for moving, entertainment, travel and other similar expenses in the ordinary course of business not to exceed $1,000,000 in the aggregate at any one time outstanding;
(d) Investments under Currency Agreements, Hedging Agreements and Interest Rate Agreements entered into by Parent Borrower or its Subsidiaries in the ordinary course of business and otherwise in compliance with this Agreement and, in each case, not for speculative purposes;
(e) Investments by Parent Borrower and its Subsidiaries in securities of trade creditors or customers received pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers or in good faith settlement of delinquent obligations of such trade creditors or customers;
(f) Investments made by Parent Borrower or its Subsidiaries as a result of consideration received in connection with an Asset Disposition made in compliance with Section 3.7;
(g) (i) accounts receivable and extended payment terms of Parent Borrower and its Subsidiaries provided to customers that are made, created or acquired in the ordinary course of business and (ii) Investments in the ordinary course of business consisting of Article 3 endorsements for collection or deposit and Article 4 customary trade arrangements with customers consistent with past practices;
(h) Investments consisting of deposits, prepayments and other credits to suppliers made in the ordinary course of business of Parent Borrower and its Subsidiaries;
(i) Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged 3.3 to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Existing Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held consisting of loans made by Holdings to officers or employees of Holdings or any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or other Credit Party in connection with the purchase by such acquisition, merger officers or consolidation and were in existence on employees of Stock of Holdings; provided that the date aggregate amount of such acquisition, merger or consolidationInvestments shall not exceed $1,000,000 at any one time outstanding;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04constituting Permitted Acquisitions;
(l) Investments consisting of (i) extensions intercompany loans or advances made by Parent Borrower to Holdings in lieu of trade credit, (ii) deposits made in connection with making any Restricted Payment permitted pursuant to Section 3.5 by way of dividend or other distribution; provided that the purchase amount of goods or services or the performance such loan shall count as a Restricted Payment for purposes of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of businessSection 3.5;
(m) other the formation of and Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) new Domestic Subsidiaries of the definition of “Permitted Acquisition”) shall not exceed an amount equal to Parent Borrower that are Credit Parties, provided that (i) such Subsidiary is owned by the Available Equity Amount at such timeParent Borrower or another Borrower, minus (ii) the sum Parent Borrower shall have notified the Agent at least ten (10) Business Days prior to the formation or acquisition of any such Subsidiary, (iii) such Subsidiary shall be engaged in a permitted business of the Parent Borrower or its Subsidiaries hereunder and (iv) as of the date of the formation or acquisition of any such Subsidiary and the Investment therein, and after giving effect thereto, (A) the aggregate amount of Investments made pursuant to this clause such new Subsidiary and its parent shall have entered into any and all agreements (m) subsequent in form and substance reasonably satisfactory to the Closing Date as Agent) necessary to comply with Section 2.8, and the Agent shall be satisfied that all Liens required to be granted in the assets and ownership interests of such time new Subsidiary under such Section 2.8 have been granted or pledged and have been perfected and are subject only to Permitted Encumbrances hereunder, and (B) the aggregate amount no Event of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such timeDefault shall have occurred and be continuing;
(n) other Investments and other acquisitionsin an aggregate amount not to exceed $5,000,000 at any one time outstanding; and
(o) the acquisition (by purchase or otherwise) of all or substantially all of the Stock of any company or the assets comprising a business unit of any company, provided that (Ai) no Specified Default or Event of Default shall have occurred and be continuing at such time or would result therefrom therefrom, (ii) either (x)(1) Average Availability on a pro forma basis for the 30-day period immediately prior to the date of such Investment shall not be less than 15% of the Revolving Loan Commitments of all Lenders, (2) Excess Availability on a pro forma basis immediately after giving effect to such Investment shall not be less than 15% of the Revolving Loan Commitments of all Lenders and (B3) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment and after giving effect thereto the Credit Parties shall be in compliance with the financial covenants set forth in Section 3.19 and Section 3.20 as if then operative or (y)(1) Average Availability on a pro forma basis for the aggregate amount 30-day period immediately prior to the date of such Investment shall not be less than 20% of the Revolving Loan Commitments of all consideration paid Lenders and (2) Excess Availability on a pro forma basis immediately after giving effect to such Investment shall not be less than 20% of the Revolving Loan Commitments of all Lenders; and (iii) if the purchase price payable in connection with such acquisition (determined as Investment is in excess of $25,000,000, Parent Borrower shall have complied with the requirements set forth in clause clauses (a), (b), (c), (f) and (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at ” with respect to such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)Investment.
Appears in 1 contract
Investments. None No Loan Party will, or will permit any Subsidiary of the Parent, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdLoan Party to, make or otherwise suffer to exist any Investment in any other PersonInvestments, or make any Acquisition, other thanexcept that:
(a) Permitted InvestmentsLoan Parties may purchase or otherwise acquire, own and may permit any of its Subsidiaries to purchase or otherwise acquire and own (i) cash and (ii) Cash Equivalents, subject in each case to the requirements of Section 6.1;
(b) the Loan Parties may hold the Investments existing on the Closing Date in Subsidiaries, and other Investments existing existence on the Closing Date and set forth on Schedule 6.07 described in Sections 1(f) and (but not any additions thereto (including any capital contributionsg) made after of the Closing Date)Perfection Certificate;
(c) investments by the Parent, Loan Parties and their Subsidiaries may hold the Obligor and the other Restricted Subsidiaries in Equity Interests in of their Restricted respective Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA Subsidiaries as of the last day Closing Date or become Subsidiaries following the Closing Date in accordance with the remaining terms of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to this Section 5.04(a) or 5.04(b) prior to the date of such Investment8.5;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are may license Intellectual Property in each case in a manner not materially interfering with the conduct of the business of the Loan Parties shall be subject to or any of their Subsidiaries or with Agent’s rights and interests (including the limitation set forth Liens granted thereto) in clause (c)(iii) abovesuch Intellectual Property;
(e) Guarantees by the Parent, Loan Parties may (A) extend trade credit in the Obligor or any other Restricted Subsidiary Ordinary Course of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary Business and (including any such Guarantees arising as a result of any such Person being a joint B) acquire and several co-applicant with respect hold accounts receivables owing to any Letter of Credit them if created or any other letter acquired in the Ordinary Course of credit Business and payable or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth dischargeable in clause (c)(iii) aboveaccordance with customary terms;
(f) Investments the Loan Parties and their Subsidiaries may endorse negotiable instruments held for collection in the form Ordinary Course of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
Business; (i) Investments received in connection with to the bankruptcy or reorganization ofextent constituting Investments, or settlement of delinquent accounts the Loan Parties and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
their Subsidiaries may make (jA) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) xxxxxxx money deposits made in connection with the purchase acquisition of goods property or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are assets not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time prohibited hereunder and (B) deposits made in the aggregate amount Ordinary Course of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent Business to the Closing Date as of such timeextent constituting a Lien permitted under Section 8.3;
(ng) the Loan Parties and their Subsidiaries may make Investments in securities of trade creditors in the Ordinary Course of Business received upon foreclosure or pursuant to any plan of reorganization or liquidation or similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers so long as Agent, for the benefit of the Lenders, is granted a first priority security interest in such Investments, which Lien is perfected contemporaneously therewith;
(h) without limiting Section 8.2, a Loan Party may make Investments in any other Investments Loan Party that is organized and other acquisitions; provided that existing under the laws of the United States or any state or commonwealth thereof or under the laws of the District of Columbia;
(Ai) so long as no Specified Default or Event of Default shall have has occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquiredcontinuing, the aggregate amount Borrowers may convert any of their Accounts that are in excess of ninety (90) days past due into notes issued by Account Debtors to a Borrower pursuant to negotiated agreements with respect to settlement of such Investment or Account Debtor's Accounts in the aggregate amount Ordinary Course of all consideration paid in connection Business, consistent with such acquisition (determined past practices, so long as set forth in clause (g) Agent, for the benefit of the definition Lenders, is granted a first priority security interest in such notes, which Xxxx is perfected contemporaneously with the conversion of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor)Account to notes; and
(oj) so long as the Payment Conditions are satisfied, other Investments by the Loan Parties and other acquisitions; provided that (A) their Subsidiaries not to exceed $500,000 in the aggregate at any time outstanding. Notwithstanding the foregoing, no Specified Default Investment shall include the disposition or Event transfer of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect any Intellectual Property to any such Investment Person (other than (x) to a Loan Party or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (y) as provided in each case, as certified by a Responsible Officer of the Obligorclause (d) above).
Appears in 1 contract
Investments. None of the ParentMake or hold any Investments, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Investments by the Borrower or a Restricted Subsidiary in assets that were Cash Equivalents when such Investments were made; provided, however, that (i) at any time Revolving Credit Loans and/or Swing Line Loans are outstanding, the aggregate amount of Unrestricted cash and Cash Equivalents held by the Borrower and its Restricted Subsidiaries shall not exceed $15,000,000 for any period of five consecutive Business Days and (ii) the aggregate amount of Cage Cash maintained by the Borrower and the Restricted Subsidiaries (A) shall not exceed the amount of cash, determined by the Borrower in its reasonable business judgment consistent with past practices, desirable in the ordinary course of business to be maintained in the Hotel/Casino Facilities and (B) shall not exceed $60,000,000 (or such higher amount of Cage Cash as shall be required by the Gaming Authorities for the Borrower and the Restricted Subsidiaries in the aggregate as set forth in a written notice from the Borrower to the Administrative Agent and the Lenders) for any period of five consecutive Business Days, provided, further, that, upon a Permitted InvestmentsAcquisition, the maximum amount specified in this clause (B) shall be increased to an amount reasonably determined by the Borrower (subject to the consent of the Administrative Agent (not to be unreasonably withheld)) to reflect any increase in the aggregate amount of Cage Cash of the Borrower and the Restricted Subsidiaries desirable in the ordinary course of business in connection with such Permitted Acquisition;
(b) Investments existing on loans or advances to officers, directors, board managers and employees of the Closing Date Borrower and the Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes so long as made in Subsidiariesaccordance with applicable law, and (ii) in connection with such Person’s purchase of Equity Interests of Holdco (provided that the amount of such loans and advances described in this clause (b) (ii) shall be contributed to the Borrower in cash as common equity); provided the aggregate principal amount of all loans and advances made in reliance on this clause (b) shall not exceed $1,000,000 at any time outstanding;
(c) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary;
(d) 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;
(e) Investments consisting of Liens, Indebtedness, fundamental changes, Dispositions and Restricted Payments permitted under Sections 7.01, 7.03, 7.04, 7.05 and 7.06, respectively;
(f) Investments existing on the Closing Date and set forth on Schedule 6.07 7.02(f) by the Borrower or any Restricted Subsidiary in the Borrower or any other Restricted Subsidiary; provided that the amount of the original Investment is not increased except by the terms of such Investment or as otherwise permitted by this Section 7.02;
(g) Investments in Swap Contracts permitted under Section 7.03;
(h) promissory notes and other noncash consideration received in connection with Dispositions permitted by Section 7.05;
(i) the purchase or other acquisition after the Closing Date of property and assets or businesses of any Person or of assets constituting a business unit, a line of business or division of such Person, or Equity Interests in a Person that, upon the consummation thereof, will be a Subsidiary of the Borrower (including as a result of a merger or consolidation); provided that, with respect to each purchase or other acquisition made pursuant to this Section 7.02(i) (each, a “Permitted Acquisition”):
(A) with respect to any Permitted Acquisition having Aggregate Consideration equal to or greater than $10,000,000, the Borrower shall (1) deliver to the Administrative Agent, on behalf of the Lenders, no later than ten (10) Business Days (or such later date as determined by the Administrative Agent in its reasonable discretion) prior to the date on which any such purchase or other acquisition is consummated, written notice thereof, (2) use reasonable best efforts to deliver to the Administrative Agent promptly, but in no event later than the consummation of such purchase or acquisition, copies of the applicable purchase agreement and all other material transaction documents and other information in connection therewith reasonably requested by the Administrative Agent and (3) deliver to the Administrative Agent, no later than five (5) Business Days (or such later date as determined by the Administrative Agent in its reasonable discretion) prior to the date on which any such purchase or acquisition is consummated, a certificate of Responsible Officer, in form and substance reasonably satisfactory to the Administrative Agent, specifying whether any newly created or acquired Subsidiary will result therefrom and whether such Subsidiary will constitute a Restricted Subsidiary or Unrestricted Subsidiary;
(B) the Aggregate Consideration paid in respect of such Permitted Acquisition, together with the Aggregate Consideration paid in respect of all other Permitted Acquisitions since the Closing Date (excluding the GVR Acquisition and further excluding, in each case, amounts funded using the proceeds of Revolving Credit Loans or Swing Line Loans), shall not exceed the sum of (1) the Net Cash Proceeds of Permitted Equity Issuances (other than Permitted Equity Issuances made pursuant to Section 8.05) received after the Closing Date that are Not Otherwise Applied plus (2) Cumulative Excess Cash Flow to the extent Not Otherwise Applied;
(C) the acquired property, assets, business or Person is in the same line of business as the Borrower or a Restricted Subsidiary;
(D) if all or any additions thereto portion of such purchase or acquisition is funded by the proceeds of Revolving Credit Loans or Swing Line Loans, each Hotel/Casino Facility subject to such purchase or acquisition is located in the Las Vegas Locals Market;
(i) all property and assets acquired by the Borrower or any Restricted Subsidiary in such purchase or other acquisition shall constitute Collateral (unless the same constitute Excluded Assets) in accordance with Section 6.11 and (ii) each Subsidiary created or acquired in connection with such Permitted Acquisition that will constitute a Restricted Subsidiary shall become a Guarantor and cause all of its respective property and assets to become Collateral (unless the same constitute Excluded Assets) in accordance with Section 6.11;
(F) if any portion of the Aggregate Consideration for such Permitted Acquisition is funded using the proceeds of Revolving Credit Loans or Swing Line Loans (other than Revolving Credit Loans or Swing Line Loans drawn using Availability created by repayments of Revolving Credit Loans and Swing Line Loans using proceeds of Cumulative Excess Cash Flow that is Not Otherwise Applied), the aggregate outstanding principal amount of Indebtedness assumed or incurred by the Borrower and its Subsidiaries (other than pursuant to the Revolving Credit Facility) in connection with such Permitted Acquisition shall not be greater than 4.0 times the Aggregate Consideration (exclusive of any such assumed or incurred Indebtedness) paid in respect of such Permitted Acquisition;
(G) if (i) any Subsidiary created or acquired in connection with such Permitted Acquisition shall constitute an Unrestricted Subsidiary and (ii) any portion of the Aggregate Consideration for such Permitted Acquisition is funded using the proceeds of Revolving Credit Loans or Swing Line Loans (other than Revolving Credit Loans or Swing Line Loans drawn using Availability created by repayments of Revolving Credit Loans and Swing Line Loans using proceeds of Cumulative Excess Cash Flow that is Not Otherwise Applied), the principal balance of the Revolving Credit Loans and Swing Line Loans so applied shall not, in the aggregate, exceed the sum of (x) the portion of such Aggregate Consideration funded using Cumulative Excess Cash Flow that is Not Otherwise Applied and (y) the portion of such Aggregate Consideration funded using Net Cash Proceeds of Permitted Equity Issuances (other than Permitted Equity Issuances made pursuant to Section 8.05); provided, that any such Permitted Equity Issuances shall be funded to Holdco, by Holdco to the Borrower and by the Borrower to the applicable Unrestricted Subsidiary;
(H) (1) immediately before and immediately after giving Pro Forma Effect to any such purchase or other acquisition, no Default shall have occurred and be continuing and (2) immediately after giving effect to such purchase or other acquisition (including any capital contributionsIndebtedness incurred in connection therewith), (i) made the Borrower and the Restricted Subsidiaries shall be in Pro Forma Compliance with all of the covenants set forth in Section 7.11 and (ii) the Total Leverage Ratio (as determined on a Pro Forma Basis after giving effect to such purchase or other acquisition) shall be less than or equal to the Closing DateTotal Leverage Ratio (as determined immediately prior to such purchase or acquisition), with such compliance with preceding clauses (i) and (ii) to be determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or (b) as though (where applicable) such purchase or other acquisition had been consummated as of the first day of the fiscal period covered thereby and evidenced by a certificate from the principal accounting officer of the Borrower demonstrating such compliance calculation in reasonable detail;
(I) the Borrower shall have delivered to the Administrative Agent, on behalf of the Lenders, no later than five (5) Business Days prior to the date on which any such purchase or other acquisition is consummated, a certificate of a Responsible Officer, in form and substance reasonably satisfactory to the Administrative Agent, certifying that all of the requirements set forth in this clause (i) have been satisfied or will be satisfied on or prior to the consummation of such purchase or other acquisition; and
(J) after giving effect to such purchase or acquisition and any incurrence of Indebtedness in connection therewith, Liquidity shall not be less than $40,000,000;
(j) the Restructuring Transactions (including, without limitation, the OpCo Acquisition);
(ck) investments by Investments in the Parent, ordinary course of business consisting of Article 3 of the Obligor Uniform Commercial Code endorsements for collection or deposit and Article 4 of the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries Uniform Commercial Code customary trade arrangements with customers consistent with past practices;
(l) Investments (including as capital contributions debt obligations and Equity Interests) 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 such Restricted Subsidiaries); provided that any secured Investment or other transfer of title with respect to any secured Investment;
(im) such Restricted Subsidiaries are Restricted Subsidiaries loans and advances to the Holding Companies (or any direct or indirect parent thereof) in lieu of, and not in excess of the Parent prior amount of (after giving effect to such investmentsany other loans, (ii) any such Equity Interests held by a Loan Party shall be pledged advances or Restricted Payments in respect thereof), Restricted Payments to the extent required by permitted to be made to the definition of the term “Collateral and Guarantee Requirement” Holding Companies (or such parent) in accordance with Section 7.06(f) and (iiig);
(n) so long as immediately after giving effect to any such Investment, no Default has occurred and is continuing and the Borrower and the Restricted Subsidiaries will be in Pro Forma Compliance with the covenants set forth in Section 7.11, Investments in an aggregate amount from and after the Closing Date not to exceed the sum of (A) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties Net Cash Proceeds of Indebtedness and Permitted Equity Issuances (other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered than Permitted Equity Issuances made pursuant to Section 5.04(a8.05) or 5.04(b) prior to received after the date of such Investment;
Closing Date that are Not Otherwise Applied, plus (d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (iiB) the amount of such loans and advances made by the Loan Parties Cumulative Excess Cash Flow that is Not Otherwise Applied plus (C) an amount equal to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above$50,000,000;
(eo) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary advances of Indebtedness or other obligations payroll payments to employees of the Parent, Borrower and the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(ip) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business[reserved];
(jq) Investments held by any of a Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any of a Person merged into the Borrower or merged or consolidated with any Group Member a Restricted Subsidiary in accordance with Section 7.04 after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(kr) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04[reserved];
(ls) Investments consisting of in LandCo Holdings and LandCo (including, without limitation, (i) extensions of trade credit, pursuant to the LandCo Support Agreement or (ii) deposits made in connection with the purchase of goods or services or the performance of leasesto be applied by LandCo Holdings to pay corporate overhead expenses, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties franchise taxes and other extensions of credit tofees, customers taxes and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of businessexpenses required to maintain its limited liability company existence);
(mt) other Investments and other acquisitions; provided thatin OpCo Holdings made using the proceeds of any capital contribution to, at the time each such Investment or acquisition is purchased, made any sale or otherwise acquiredissuance of its Equity Interests by, the aggregate Borrower or Holdco, in an amount of such Investment or the aggregate amount of all consideration paid not in connection with such acquisition (determined as set forth in clause (g) excess of the definition of “Permitted Acquisition”Applicable Clawback Amount with respect thereto;
(u) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus GVR Acquisition and (ii) the sum buy-out by the Borrower of (A) the GVR Option; provided, that the aggregate amount consideration paid by the Borrower in respect of any buy-out of the GVR Option shall not exceed [* * *]; or
(v) Investments in Unrestricted Subsidiaries made using the proceeds of Cure Note Indebtedness to the extent applied to cure or prevent a Specified Event (as defined in the Equityholders Agreement); provided, that any Investment (or series of related Investments) in one or more entities that are not Restricted Subsidiaries in excess of $1,000,000 (including, for the avoidance of doubt, any Investment resulting from the designation of a Restricted Subsidiary as an Unrestricted Subsidiary but excluding Investments pursuant to Section 7.02(s) through (v)) shall not be permitted pursuant to this clause (m) subsequent to Section 7.02, unless the Closing Date as Borrower has provided the Administrative Agent with a certificate of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided Borrower certifying that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect any cash used to any make such Investment (or acquisitionseries of related Investments, in which case the Total Adjusted Net Leverage Ratio Borrower will provide such certificate only upon the first Investment in such series) shall not exceed be used for a current Bona Fide Business Purpose other than “cash hoarding” (as determined by the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (Administrative Agent in each case, as certified by a Responsible Officer of the Obligorits reasonable discretion).
Appears in 1 contract
Investments. None Each Borrower will not, and will not permit any of the Parentits Subsidiaries to, the Obligor make, incur, assume or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Permitted Investments existing on the Amendment Effective Date and identified in Item 8.2.5(a) ("Ongoing Investments") of the Disclosure Schedule and extensions, replacements of Investments in the same Person or renewals thereof (provided that no such extension, replacement or renewal shall be permitted if it would (x) increase the amount of such Investment at the time of such extension, replacement or renewal above the amount reflected in Item 8.2.5(a) of the Disclosure Schedule or (y) result in a Default or Event of Default);
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date)Cash Equivalent Investments;
(c) investments by the ParentInvestments which are Permitted Business Acquisitions;
(d) without duplication, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including Investments permitted as capital contributions Capital Expenditures pursuant to such Restricted Subsidiaries); provided that Section 8.2.7;
(i) Investments by a Subsidiary Borrower or a Subsidiary Guarantor in the Parent (A) by way of contributions to capital or the making of loans or advances, to the extent the amount of such Restricted Investment would be permitted as a dividend pursuant to clause (a) of Section 8.2.6 at the time of such Investment and (B) by way of advances that are pursuant to the Parent's cash management system for it and its Subsidiaries and (ii) Investments by a direct Subsidiary of the Parent (other than a Subsidiary Borrower) in the Parent;
(f) Investments by a Subsidiary Borrower or a Subsidiary Guarantor in Subsidiary Borrowers and Subsidiary Guarantors that are Restricted Wholly Owned Subsidiaries of a Borrower or a Subsidiary Guarantor, or, to the extent permitted by clause (r) of Section 8.2.2, in a Subsidiary Guarantor that is neither a Subsidiary Borrower nor a Subsidiary of a Subsidiary Borrower;
(g) Investments by a Borrower or a Subsidiary Guarantor in Subsidiaries of the Parent prior that are not permitted by the preceding clause (f) or succeeding clause (h) (exclusive of such Investments existing as of the date hereof and identified in Item 8.2.5(a) ("Ongoing Investments") of the Disclosure Schedule), by way of contributions to such investmentscapital, (ii) any such Equity Interests held by a Loan Party shall be pledged the making of loans or advances or the incurrence of Contingent Liabilities, to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments Investments (i) in such Subsidiaries (other than RCFC) do not exceed $35,000,000 at any time outstanding and (ii) in RCFC are for the purpose of satisfying any required credit enhancement of any Segregated Series of Notes (as such terms are defined in the Base Indenture) and do not exceed $50,000,000 (or, in the Administrative Agent's sole and absolute discretion, an amount in excess of $50,000,000 which does not exceed $100,000,000) at any time outstanding;
(h) Investments by the Loan Parties in, and loans and advances Parent in a Subsidiary Borrower or any Subsidiary Guarantor;
(i) Investments by a Subsidiary of the Parent that is neither a Subsidiary Borrower nor a Subsidiary Guarantor in the Parent or any Subsidiary of the Parent;
(j) Investments evidenced by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and Demand Capitalization Notes permitted by clause (bh) aboveof Section 8.2.2;
(k) shall Investments in franchisees of Thrifty, Thrifty Car Sales or Dollar
(i) by way of (A) guaranties or (B) obtaining letters of credit for the benefit of beneficiaries selected by any such franchisees and with respect to which any such franchisee is the account party or is benefited and the Parent or any of its Subsidiaries is obligated to reimburse the issuer thereof for drawings thereunder, in each case, in respect of obligations of such franchisees in respect of the leasing by such franchisees of real or personal property under arrangements which would not, at any when madeunder GAAP, exceed $15,000,000 at any time outstandingthe greater be classified as capitalized leases, to the extent the sum of (x) $20,000,000 the guaranteed obligations payable thereunder (other than any portion of rental payments that are determined on the basis of revenues generated by the property subject to such leases or by the operations conducted on the property subject to such leases) and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date aggregate stated amounts of such Investment;
letters of credit, together with unreimbursed obligations in respect thereof, does not exceed at any time $10,000,000 (d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is exclusive of Investments permitted by clause (ea) of the definition of “Permitted Debt” and above);
(ii) by way of the amount making of loans or advances to such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject franchisees or guaranties for their benefit or otherwise to the limitation set forth extent such Investments do not exceed in clause the aggregate at any time $12,000,000 (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary exclusive of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness Investments permitted by clause (ba) above); or
(iii) to the extent permitted under clause (a)(i) of Section 8.2.1; provided, however, that the aggregate amount of the Investments made pursuant to clauses (k)(i) and (k)(ii) that were funded in cash and that are outstanding at any time does not exceed $5,000,000;
(l) other Investments (except Investments which are Permitted Business Acquisitions or Investments of the type described in clause (eg)) in an aggregate amount at any time not to exceed $15,000,000; provided, however, that
(i) any Investment which when made complies with the requirements of the definition of the term “Permitted Debt”, and "Cash Equivalent Investment" may continue to be held notwithstanding that such Investment if made thereafter would not comply with such requirements; and
(ivii) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed no Investment otherwise permitted by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
c), (f) Investments in the form of Hedge Agreements permitted under Section 6.12;
e), (g) Permitted Acquisitions;
(h) Any payroll), travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
or (l) Investments consisting of (i) extensions of trade creditshall be permitted to be made if, (ii) deposits made in connection with the purchase of goods immediately before or services or the performance of leasesafter giving effect thereto, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)continuing.
Appears in 1 contract
Samples: Credit Agreement (Dollar Thrifty Automotive Group Inc)
Investments. None Neither the Borrower nor any of the Parent, the Obligor or any other its Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), Subsidiaries will hold, make or otherwise suffer to exist acquire any Investment in any Person other Personthan itself, or make any Acquisition, other thanexcept the following:
(a) Permitted Investments;
(bi) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth date hereof disclosed on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor 7.06 hereto and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees Investments existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for in Persons which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to are Subsidiaries on the date of such Investmenthereof;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount Borrower and each of such loans and advances made by the Loan Parties to its Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth may invest in clause cash (c)(iii) aboveincluding cash held in deposit accounts), Cash Equivalents and, using any currency on hand other than Dollars, Foreign Cash Equivalents;
(eiii) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations Foreign Subsidiaries of the Parent, the Obligor or any other Borrower that are Restricted Subsidiary Subsidiaries may invest in cash (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit cash held in deposit accounts), Cash Equivalents or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and Foreign Cash Equivalents;
(iv) the aggregate amount Borrower and each Restricted Subsidiary of Indebtedness the Borrower may acquire and other obligations hold receivables, accounts, notes receivable, chattel paper, payment intangibles and prepaid accounts owing to them, if created or acquired in the ordinary course of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth business and payable or dischargeable in clause (c)(iii) aboveaccordance with customary trade terms;
(fv) the Borrower and each Restricted Subsidiary of the Borrower may acquire and own Investments (including obligations evidencing Indebtedness) received in connection with the settlement of accounts in the form ordinary course or in connection with the bankruptcy or reorganization of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payrollsuppliers and customers or in settlement of delinquent obligations of, traveland other disputes with, entertainment, relocation customers and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made suppliers arising in the ordinary course of business;
(ivi) Investments received loans and advances to employees of the Borrower and its Restricted Subsidiaries (A) in the ordinary course of business in an aggregate principal amount at any one time outstanding not to exceed $3,000,000;
(vii) the Borrower and each of its Restricted Subsidiaries may make deposits in the ordinary course of business consistent with past practices to secure the performance of operating leases and payment of utility contracts;
(viii) the Borrower and each of its Restricted Subsidiaries may make good faith deposits in the ordinary course of business in connection with Permitted Acquisitions or obligations in respect of surety bonds (other than appeal bonds), statutory obligations to Governmental Authorities, tenders, sales, contracts (other than for borrowed money), bids, leases, government contracts, performance and return-of-money bonds and other similar obligations incurred in the bankruptcy ordinary course of business for sums not more than 90 days overdue or reorganization ofbeing contested in good faith by appropriate proceedings and for which the Borrower and its Subsidiaries maintain adequate reserves in accordance with GAAP;
(ix) loans by the Borrower to officers and employees of the Borrower 100% of the proceeds of which are used to purchase Equity Interests or Equity Equivalents in the Borrower (in each case, or settlement other than Disqualified Capital Stock), so long as all of delinquent accounts and disputes with, customers and suppliers, or in connection the cash proceeds of such purchases are immediately contributed to the Borrower;
(x) consistent with the satisfaction provisions of this Agreement, (I) any Restricted Subsidiary that is not a Guarantor may make Investments in the Borrower or enforcement any other Restricted Subsidiary of claims due the Borrower, (II) the Borrower may make Investments in any Guarantor, (III) any Guarantor may make Investments in the Borrower or owing any other Guarantor and (IV) the Borrower or any Guarantor may make Investments in any Foreign Subsidiary that is a Restricted Subsidiary (limited in the case of this clause (IV) to Investments in an aggregate amount outstanding at any Group Member, time not to exceed the greater of $30,000,000 and 15% of Consolidated EBITDA on a Pro-Forma Basis of the Borrower and its Subsidiaries for the four-quarter period in respect of which financial statements have been delivered ended immediately prior to the date of such determination); provided that in each case case, (A) each item of intercompany Indebtedness shall be evidenced by a promissory note (which shall be substantially in the form of Exhibit H hereto), (B) each promissory note evidencing intercompany loans and advances made by a Foreign Subsidiary that is a Restricted Subsidiary or a non-Wholly Owned Domestic Subsidiary (that is a Restricted Subsidiary but is not a Guarantor) to a Guarantor or the Borrower shall contain the subordination provisions set forth in Exhibit I and (C) each promissory note evidencing intercompany loans and advances (other than promissory notes held by Foreign Subsidiaries that are Restricted Subsidiaries, except to the extent provided in Section 6.12(d)) shall be pledged to the Collateral Agent pursuant to the Security Agreement to the extent required thereby;
(xi) Guaranty Obligations permitted by Section 7.01(x) and the Swap Obligations permitted under Section 7.01(viii);
(xii) Investments arising out of the receipt by the Borrower or any of its Restricted Subsidiaries of non-cash consideration for the sale of assets permitted under Section 7.05;
(xiii) the Borrower and its Restricted Subsidiaries may make Investments constituting Permitted Acquisitions;
(xiv) the Borrower and its Restricted Subsidiaries may engage in asset swaps in the ordinary course of business; provided that to the extent such assets were Collateral, the Borrower complies with the requirements of Section 6.12 with respect to the assets received in exchange for the Collateral;
(jxv) Investments held of any Person in existence at the time such Person becomes a Restricted Subsidiary;
(xvi) the portion consisting of Qualified Capital Stock of the consideration of any Investment;
(xvii) the Borrower and its Restricted Subsidiaries may make other Investments (including Permitted Joint Ventures) not otherwise permitted by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by 7.06 in an aggregate amount at any Person merged into or consolidated with any Group Member after time outstanding not exceeding the Closing Date greater of $35,000,000 and 15% of Consolidated EBITDA on a Pro-Forma Basis of the Borrower and its Subsidiaries for the four-quarter pe- riod in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation respect of or in connection with such acquisition, merger or consolidation and were in existence on which financial statements have been delivered ended immediately prior to the date of such acquisition, merger or consolidationdetermination;
(kxviii) the Borrower and its Restricted Subsidiaries may make other Investments (including Permitted Joint Ventures) not otherwise permitted by this Section 7.06 using the Available Amount so long as the Available Amount Conditions are satisfied;
(xix) the making of the Acquisition pursuant to the Acquisition Documents on the Closing Date; and
(xx) Investments made arising from the factoring or purchase of accounts receivable owing to hospitals and other healthcare providers in an aggregate amount for all such Investments pursuant to this clause (xx) not to exceed $30,000,000 (net of any cash return from such Investments received by the Borrower and its Restricted Subsidiaries as a result of the receipt of noncash consideration from collections thereunder or upon the disposition thereof); provided that (x) neither the Borrower nor any Disposition of its Restricted Subsidiaries may make or own any Investment in Margin Stock in violation of Regulations T, U or X of the Board of Governors of the Federal Reserve System and (y) the amount of any asset Investment in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with a Person other than Borrower or a Subsidiary shall be the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate initial amount of such Investment and any addition thereto, as reduced by any repayment of principal to Borrower or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time a Subsidiary (in each case, as certified by the case of an Investment constituting Indebtedness) or any distribution constituting a Responsible Officer return of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis cash (in each case, as certified by the case of any other Investment) to Borrower or a Responsible Officer of the Obligor)Subsidiary.
Appears in 1 contract
Samples: Credit Agreement (Medassets Inc)
Investments. None of the Parent, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto)Purchase, hold, make or otherwise suffer to exist acquire any Investment in Investments, any other Person, or make any Acquisition, other thanexcept:
(ai) Permitted Investments;
(bi) Investments by the Borrower and its Subsidiaries existing on the Closing Date date hereof in Subsidiaries, the Equity Interests of their respective Subsidiaries and other (ii) additional Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor Borrower and the other Restricted Subsidiaries in the Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted of the Borrower and the Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (iiA) any such Equity Interests held by a Loan Party shall be pledged pursuant to the extent required by Guarantee and Collateral Agreement or a Pledge Agreement (subject to the definition limitations applicable to voting Equity Interests of the term “Collateral and Guarantee Requirement” a Foreign Subsidiary referred to therein) and (iiiB) the aggregate amount of such investments Investments made by the Loan Parties inafter the date hereof in Subsidiaries that are not (or do not become at the time of the acquisition) Loan Parties (determined without regard to any write downs or write‑offs of such Investments), and when combined with loans and advances made by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted to Subsidiaries that are not Loan Parties (excluding all such investmentspursuant to Section 6.04(iii), loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, not exceed $15,000,000 500,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investmentoutstanding;
(dii) Permitted Investments;
(iii) loans or advances made by the Parent, Borrower to any Subsidiary and made by any Subsidiary to the Obligor Borrower or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) any such loans and advances made by a Loan Party shall be evidenced by a promissory note pledged to the Indebtedness resulting therefrom is permitted by clause (e) Collateral Agent for the ratable benefit of the definition of “Permitted Debt” Secured Parties pursuant to the Guarantee and Collateral Agreement or a Pledge Agreement and (ii) the aggregate amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties (determined without regard to any write‑downs or write‑offs of such loans and advances), when combined with the Investments made pursuant to Section 6.04(i) shall be subject to the limitation set forth in clause (c)(iii) abovenot exceed $500,000 at any time outstanding;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(jv) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 Borrower and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation its Subsidiaries may make loans and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, advances in the ordinary course of businessbusiness to their respective employees for travel ,entertainment, relocation and analogous ordinary business purposes so long as the aggregate principal amount thereof at any time outstanding (iiidetermined without regard to any write‑downs or write‑offs of such loans and advances) notes receivable of, or prepaid royalties shall not exceed $100,000;
(vi) the Borrower and other extensions its Subsidiaries may enter into Hedging Agreements in the ordinary course of credit to, customers and suppliers business that are not Affiliates speculative in nature;
(vii) Investments resulting from the reinvestment of Net Cash Proceeds of Disposition or Net Insurance/Condemnation Proceeds arising from any Group Member Casualty Event as permitted under Section 2.10 of this Agreement;
(viii) Guarantees permitted by Section 6.01;
(ix) Investments consisting of intercompany debt permitted hereunder;
(x) prepaid expenses or lease, utility and that are other similar deposits, in each case made in the ordinary course of business;
(mxi) other Investments consisting of any deferred portion (including promissory notes and other acquisitions; provided that, at non cash consideration) of the time each such Investment sales price received by the Borrower or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid any Subsidiary in connection with any Disposition permitted hereunder;
(xii) the Acquisition;
(xiii) Borrower or any of its Subsidiaries may acquire all or substantially all the assets of a Person or line of business of such acquisition Person, or not less than 100% of the Equity Interests (determined as set forth in clause (gother than directors’ qualifying shares) of a Person (referred to herein as the definition of “Permitted AcquisitionAcquired Entity”) shall not exceed an amount equal to ); provided that (i) such acquisition was not preceded by an unsolicited tender offer for such Equity Interests by, or proxy contest initiated by, the Available Equity Amount at such time, minus Borrower or any Subsidiary or Affiliate thereof; (ii) the sum Acquired Entity shall be in a similar or reasonably related line of business as that of the Borrower and the Subsidiaries as conducted during the current and most recent calendar year; and (iii) at the time of such transaction (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time both before and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) after giving effect thereto, no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and continuing; (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, Borrower would be in compliance with the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as covenants set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (Sections 6.12 and 6.13, in each case, as certified by a Responsible Officer of the Obligormost recently completed period of four consecutive fiscal quarters or fiscal month, as applicable, ending prior to such transaction for which the financial statements required by Section 5.04(a) or Section 5.04(b) have been delivered, after giving pro forma effect to such transaction, and to any other event occurring after such period as to which pro forma recalculation is appropriate (including any other transaction described in this Section 6.04(xiii) occurring after such period) as if such transaction had occurred as of the first day of such period; (C) the Borrower shall have delivered to Collateral Agent a certificate of a Financial Officer, certifying as to the conditions described in this Section 6.04(xiii) and containing reasonably detailed calculations in support thereof, in form and substance satisfactory to the Collateral Agent; and (D) the purchase price in respect of such acquisition (including, without duplication, the maximum amount payable with respect to any Acquisition Earnout) shall be in the form of or funded solely with the proceeds of an issuance of the Borrower’s common Equity Interests and/or funded with cash on hand of the Acquired Entity and/or, so long as the Payment Conditions are satisfied, cash on hand of the Borrower or any of its Subsidiaries (any acquisition of an Acquired Entity meeting all the criteria of this Section 6.04(xiii) being referred to herein as a “Permitted Acquisition”);
(xiv) advances of payroll payments to employees of the Borrower and any of its Subsidiaries in the ordinary course of business;
(xv) extensions of credit in the nature of accounts receivable or notes receivable arising from (i) the sales of goods or services in the ordinary course of business, (ii) the satisfaction or partial satisfaction thereof to the extent reasonably necessary in order to prevent or limit loss and any prepayment and other credits to suppliers made in the ordinary course of business or (iii) the satisfaction, partial satisfaction or enforcement of Indebtedness or claims due or owing to Borrower or any of its Subsidiaries (in bankruptcy of customers or suppliers or otherwise outside the ordinary course of business) or as security for any such Indebtedness or claims in the ordinary course of business;
(xvi) Investments consisting of security deposits made in the ordinary course of business;
(xvii) advances (including to trade creditors) made in connection with the purchases of goods or services in the ordinary course of business;
(xviii) Investments made as a result of consideration received in connection with a Disposition permitted under Section 6.05;
(xix) Investments consisting of good faith deposits made in accordance with Section 6.02(xix); and
(oxx) other in addition to Investments permitted by paragraphs (i) through (xix) above, additional Investments by the Borrower and other acquisitions; provided that the Subsidiaries so long as the aggregate amount invested pursuant to this paragraph (Axx) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect determined without regard to any write‑downs or write‑offs of such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall Investments) does not exceed $250,000 (or such greater amount as may be agreed to by Collateral Agent in its sole discretion) in the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)aggregate.
Appears in 1 contract
Investments. None of the Parent, the Obligor Holdings and Borrower shall not and shall not cause or any other Restricted Subsidiary shall purchase permit Borrower’s Subsidiaries to directly or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, indirectly make or otherwise suffer to exist own any Investment in any other Person, or make any Acquisition, other thanPerson except:
(a) Permitted Investments;
(b) Investments existing on the Closing Date in Subsidiaries, Borrower and other Investments existing on the Closing Date its Subsidiaries may make and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) own Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation Cash Equivalents and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made hold cash in deposit accounts or securities accounts in the ordinary course of business;
(ib) Holdings and its Subsidiaries may make intercompany loans to each other to the extent permitted under Sections 3.1(b) and (h);
(c) Borrower and its Subsidiaries may hold the Investments existing on the Closing Date and identified on Schedule 3.3, plus any additions thereto otherwise permitted by this Section 3.3;
(d) Borrower and its Subsidiaries may acquire and hold Investments (including debt obligations) received in connection with the bankruptcy or reorganization of, or of suppliers and customers and in settlement of delinquent accounts obligations of, and other disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case suppliers arising in the ordinary course of business;
(je) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Borrower and its Subsidiaries may enter into Interest Rate Agreements and Other Hedging Agreements as permitted under Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation3.1;
(kf) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) Borrower and its Subsidiaries may make deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of businessbusiness consistent with past practices to suppliers or servicers and to secure the performance of leases;
(mg) other Investments Borrower and its Subsidiaries may incur guarantees permitted by Section 3.4;
(h) Borrower and its Subsidiaries may make loans and advances to employees for moving, entertainment, travel and other acquisitions; provided that, at similar expenses of Borrower and its Subsidiaries in the time each such Investment or acquisition is purchased, made or otherwise acquired, ordinary course of business not to exceed $1,000,000 in the aggregate amount at any time outstanding;
(i) Holdings may make Investments in Borrower, (ii) Borrower may make Investments in any Subsidiary that is a Guarantor and any Subsidiary that is a Guarantor may make Investments in any other Subsidiary that is a Guarantor, (iii) any Subsidiary that is not a Guarantor may make Investments in any other Subsidiary that is not a Guarantor, and (iv) Borrower may contribute the Stock of such Investment one or more of its First-Tier Foreign Subsidiaries to a Foreign Subsidiary as part of the aggregate amount Permitted Foreign Subsidiary Restructuring.
(j) Borrower and its Subsidiaries may hold Investments consisting of all non-cash consideration paid received in connection with such acquisition Asset Dispositions permitted under Section 3.7(b)(iii);
(determined k) Borrower and its Subsidiaries may effect Permitted Acquisitions in accordance with the requirements of Section 3.6;
(l) Borrower and its Domestic Subsidiaries may make Investments in any Foreign Subsidiary so long as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of such Investments made pursuant to this clause (m) subsequent to in the Closing Date as of such time and then current Fiscal Year plus (B) the aggregate amount of all Available Amount Expenditures based on usage intercompany Indebtedness pursuant to Section 3.1(b)(iii) incurred in such Fiscal Year by Foreign Subsidiaries and not yet repaid plus (C) the aggregate amount of Contingent Obligations incurred by Borrower or any Domestic Subsidiary for the benefit of any Foreign Subsidiary in such Fiscal Year pursuant to Sections 3.4(g) and (h) which remain outstanding at such time does not exceed the Foreign Investment Basket for such Fiscal Year and (ii) no Event of Default exists at the time of the Available Equity Amount subsequent to making of any such Investment or would result therefrom;
(m) Holdings may hold promissory notes issued by any officer or employee of Holdings or any of its Subsidiaries solely as consideration for the Closing Date as purchase of such timeHoldings Common Stock;
(n) Borrower may create new Subsidiaries in accordance with Section 3.14 so long as any Investment made in any new Foreign Subsidiary is otherwise permitted by this Section 3.3;
(o) Borrower and its Subsidiaries may make Investments constituting endorsements for collection or deposit in the ordinary course of business;
(p) Borrower and its Subsidiaries may make other Investments not expressly permitted by clauses (a) through (o) above so long as (i) both before and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each after giving effect to such Investment or acquisition on a Pro Forma Basis, Borrower is purchased, made or otherwise acquired, in compliance with the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as covenants set forth in clause Section 4.2 and Borrower has a pro forma Leverage Ratio of not more than 1.5 to 1.0 and (gii) of the definition of “Permitted Acquisition”) shall such Investments do not exceed (1) $5,000,000 in the Available Amount aggregate in any Fiscal Year or (2) $12,500,000 in the aggregate at such any time (in each case, as certified by a Responsible Officer of the Obligor)outstanding; and
(oq) Borrower and it Subsidiaries may make other Investments and other acquisitions; provided that not expressly permitted by clauses (Aa) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and through (Bp) at the time of and immediately after giving effect to any above, so long as such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall Investments do not exceed (i) $5,000,000 in the Specified Total Adjusted Net Leverage Ratio on a pro forma basis aggregate in any Fiscal Year or (ii) $12,500,000 in each case, as certified by a Responsible Officer of the Obligor)aggregate at any time outstanding.
Appears in 1 contract
Samples: Credit Agreement (TNS Inc)
Investments. None of Except to the Parentextent permitted pursuant to PARAGRAPH (H) below, the Obligor or Borrower shall not, and shall not permit any other Restricted Subsidiary shall purchase Loan Party to, directly or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, indirectly make or otherwise suffer to exist own any Investment in any other PersonInvestment, or make any Acquisition, other thanexcept:
(ai) Permitted InvestmentsInvestments in Cash Equivalents;
(bii) Permitted Existing Investments existing in an amount not greater than the amount thereof on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or of suppliers and customers and in settlement of delinquent accounts obligations of, and other disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case suppliers arising in the ordinary course of business;
(jiv) Investments held consisting of (a) bank and money market accounts (other than those subject to a Restricted Account Agreement) maintained by the Borrower or any Restricted Subsidiary Loan Party with financial institutions provided not more than $50,000 shall be maintained in all such accounts at any one time; and (b) deposit accounts maintained by the Equity Interests Borrower or any Loan Party with LaSalle provided funds deposited in which such deposit accounts are acquired after subject to the Closing Date terms of the Concentration Account Agreement; 86
(v) Investments by the Borrower in compliance with this Section 6.07 or held by any Person merged into or consolidated connection with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07Permitted Acquisition, in each case, so long provided that if as such Investments were not made in contemplation a result of or in connection with such acquisitionPermitted Acquisition a Subsidiary is created or acquired, merger such Subsidiary complies with the requirements set forth in SECTION 6.3(H); (vi) Investments by the Borrower or consolidation and were in existence on a Wholly-Owned Subsidiary of the date Borrower into a Wholly-Owned Subsidiary, PROVIDED that upon the creation or acquisition of such acquisition, merger or consolidation;a Wholly-Owned Subsidiary the following requirements will have been satisfied:
(k1) Investments made Such Wholly-Owned Subsidiary shall have executed a Subsidiary Guarantee in substantially the form attached hereto as EXHIBIT G. (2) Such Wholly-Owned Subsidiary, if any, shall have executed a result Security Agreement in substantially the form attached hereto as EXHIBIT D. (3) Such Wholly-Owned Subsidiary shall have obtained all of the receipt of noncash consideration third party agreements from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined applicable parties as set forth herein and in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal Security Agreement with respect to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)its assets.
Appears in 1 contract
Investments. None of the ParentMake or hold any Investments, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Investments by the Borrower or a Restricted Subsidiary in assets that were Cash Equivalents when such Investments were made; provided, however, that (x) at any time Revolving Credit Loans and/or Swing Line Loans are outstanding, the aggregate amount of Unrestricted cash and Cash Equivalents held by the Borrower and its Restricted Subsidiaries shall not exceed $7,500,000 for any period of five consecutive Business Days and (y) the aggregate amount of Cage Cash maintained by the Borrower and its Restricted Subsidiaries (A) shall not exceed the amount of cash, determined by the Borrower in its reasonable business judgment consistent with past practices, desirable in the ordinary course of business to be maintained in the Hotel/Casino Facilities and (B) shall not exceed $45,000,000 (or such higher amount of Cage Cash as shall be required by the Gaming Authorities for the Borrower and its Restricted Subsidiaries in the aggregate as set forth in a written notice from the Borrower to the Administrative Agent and the Lenders) for any period of five consecutive Business Days, provided, further, that, upon a Permitted InvestmentsAcquisition, the maximum amount specified in this clause (B) shall be increased to an amount reasonably determined by the Borrower (subject to the consent of the Administrative Agent (not to be unreasonably withheld)) to reflect any increase in the aggregate amount of Cage Cash of the Borrower and the Restricted Subsidiaries desirable in the ordinary course of business in connection with such Permitted Acquisition;
(b) loans or advances to officers, directors, board managers and employees of the Borrower and the Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes so long as made in accordance with applicable law and (ii) in connection with such Person’s purchase of Equity Interests of Holdings (or any direct or indirect parent thereof) (provided that the amount of such loans and advances described in this clause (b)(ii) shall be contributed to the Borrower in cash as common equity); provided the aggregate principal amount of all loans and advances made in reliance on this clause (b) shall not exceed $500,000 at any time outstanding;
(c) Investments existing on by the Closing Date Borrower or any Restricted Subsidiary in Subsidiariesany Restricted Subsidiary that is a Subsidiary Guarantor (excluding any new Restricted Subsidiary which becomes (or would become) a Subsidiary Guarantor concurrently with such Investment) or by a Restricted Subsidiary in the Borrower;
(d) 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;
(e) Investments consisting of Liens, Indebtedness, fundamental changes, Dispositions and Restricted Payments permitted under Sections 7.01, 7.03, 7.04, 7.05 and 7.06, respectively; provided that for purposes of any Indebtedness incurred by a Restricted Subsidiary that is not a Subsidiary Guarantor in favor of a Loan Party, and any Dispositions by a Loan Party to a Restricted Subsidiary that is not a Subsidiary Guarantor, such Investments shall be permitted pursuant to the other provisions of this Section 7.02 (and not solely pursuant to this clause (e));
(f) Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions7.02(f)(7) made after the Closing Date);
(c) investments by the Parent, Borrower or any Restricted Subsidiary in the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor Borrower or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (iix) the amount of such loans and advances made the original Investment is not increased except by the terms of such Investment or as otherwise permitted by this Section 7.02 and (y) any Investment in the form of Indebtedness of any Loan Parties Party owed to any Restricted Subsidiaries Subsidiary that are is not Loan Parties a Subsidiary Guarantor shall be subject to the limitation subordination terms set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12Intercompany Note;
(g) Permitted AcquisitionsInvestments in Swap Contracts permitted under Section 7.03;
(h) Any payroll, travel, entertainment, relocation promissory notes and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made other noncash consideration received in the ordinary course of businessconnection with Dispositions permitted by Section 7.05;
(i) Investments received in connection with the bankruptcy purchase or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired other acquisition after the Closing Date in compliance with this Section 6.07 by the Borrower or held by a wholly owned Restricted Subsidiary of the Borrower of property and assets or businesses of any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07of assets constituting a business unit, in each case, so long as such Investments were not made in contemplation a line of business or in connection with such acquisition, merger or consolidation and were in existence on the date division of such acquisitionPerson, merger or consolidation;
Equity Interests in a Person that, upon the consummation thereof, will be a Restricted Subsidiary (k) Investments made including as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods a merger or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitionsconsolidation); provided that, at the time with respect to each such Investment purchase or other acquisition is purchasedmade pursuant to this Section 7.02(i) (each, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of a “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor).):
Appears in 1 contract
Investments. None of the ParentMake or hold any Investments, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Permitted InvestmentsInvestments held by the Borrower and its Restricted Subsidiaries in the form of Cash Equivalents or, to the extent held in the Custody Account, Borrowing Base Assets;
(b) Investments existing on advances to officers, directors and employees of the Closing Date Borrower and Restricted Subsidiaries in Subsidiariesan aggregate amount not to exceed $1,000,000 at any time outstanding, for travel, entertainment, relocation and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date)ordinary course purposes;
(c) investments (i) Investments by the Parent, the Obligor Borrower and the other its Restricted Subsidiaries in Equity Interests in their respective Restricted Subsidiaries outstanding on the date hereof, (including as capital contributions to such Restricted Subsidiaries); provided that (iii) such additional Investments by the Borrower and its Restricted Subsidiaries are in Loan Parties, (iii) additional Investments by Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Borrower that are not Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” Parties in other Restricted Subsidiaries that are not Loan Parties and (iiiiv) the aggregate amount of so long as no Default has occurred and is continuing or would result from such investments Investment, additional Investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, in Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (bx) above) shall not, at any when made, in an aggregate amount not to exceed $15,000,000 100,000,000 at any time outstandingthe greater of (x) $20,000,000 and outstanding or (y) 15% for the sole purpose of IKE-Adjusted EBITDA as financing (A) product development expense that is reasonably expected to be payable within 120 days of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date making of such InvestmentInvestment or (B) milestone and other similar contingent or deferred payments owed to third parties;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, credit in the ordinary course of business, and (iii) notes receivable of, Investments received in satisfaction or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of businesspartial satisfaction thereof;
(me) Guarantees permitted by Section 7.02;
(f) Investments existing on the date hereof (other Investments than those referred to in Section 7.03(c)(i)) and set forth on Schedule 7.03;
(g) the purchase or other acquisitionsacquisition of all (other than directors’ qualifying shares) of the Equity Interests (including Equity Interests purchased or acquired in connection with a Drug Acquisition) in, or all or substantially all of the property (including property purchased or acquired in connection with a Drug Acquisition) of, any Person that, upon the consummation thereof, will be a Restricted Subsidiary wholly-owned directly by the Borrower or one or more of its wholly-owned Restricted Subsidiaries (including as a result of a merger or consolidation); provided that, with respect to each purchase or other acquisition made pursuant to this Section 7.03(g):
(i) any such newly-created or acquired Subsidiary shall comply with the requirements of Section 6.12; 140812225 v1
(ii) the lines of business of the Person to be (or the property of which is to be) so purchased or otherwise acquired shall be permitted by Section 7.07;
(iii) the total cash and noncash consideration (including the Fair Market Value of all Equity Interests issued or transferred to the sellers thereof (but excluding Qualified Equity Interests of the Borrower), all indemnities, earnouts and other contingent payment obligations to, and the aggregate amounts paid or to be paid under noncompete, consulting and other affiliated agreements with, the sellers thereof, all write-downs of property and reserves for liabilities with respect thereto and all assumptions of debt, liabilities and other obligations in connection therewith (provided that any of the foregoing constituting a contingent obligation shall only be included as noncash consideration to the extent that such contingent obligation would be reflected as a liability on the consolidated balance sheet of the Borrower and its Subsidiaries in accordance with GAAP) paid by or on behalf of the Borrower and its Restricted Subsidiaries for any such purchase or other acquisition, when aggregated with the total cash and noncash consideration (excluding Qualified Equity Interests of the Borrower) paid by or on behalf of the Borrower and its Restricted Subsidiaries for all other purchases and other acquisitions made by the Borrower and its Restricted Subsidiaries pursuant to this Section 7.03(g) of a Person that does not become a Guarantor or of assets by a Restricted Subsidiary that is not a Guarantor, shall not exceed $75,000,000;
(iv) immediately before and immediately after giving pro forma effect to any such purchase or other acquisition, no Default shall have occurred and be continuing; and
(v) the Borrower shall have delivered to the Administrative Agent and each Lender, at least five Business Days prior to the date on which any such purchase or other acquisition is to be consummated, a certificate of a Responsible Officer, in form and substance reasonably satisfactory to the Administrative Agent and the Required Lenders, certifying that all of the requirements set forth in this clause (iv) have been satisfied or will be satisfied on or prior to the consummation of such purchase or other acquisition;
(h) Investments by the Borrower and its Restricted Subsidiaries not otherwise permitted under this Section 7.03 in an aggregate amount not to exceed $25,000,000 at any time outstanding; provided that, with respect to each Investment made pursuant to this Section 7.03(h):
(i) any determination of the amount of such Investment shall include all cash and noncash consideration (including the Fair Market Value of all Equity Interests issued or acquisition is purchasedtransferred to the sellers thereof, made all indemnities, earnouts and other contingent payment obligations to, and the aggregate amounts paid or otherwise acquiredto be paid under noncompete, consulting and other affiliated agreements with, the sellers thereof, all write-downs of property and reserves for liabilities with respect thereto and all assumptions of debt, liabilities and other obligations in connection therewith) paid by or on behalf of the Borrower and its Restricted Subsidiaries in connection with such Investment; and
(ii) immediately before and immediately after giving pro forma effect to any such purchase or other acquisition, no Default shall have occurred and be continuing;
(i) other Investments (including Drug Acquisitions), so long as (x) no Default shall have occurred and be continuing or would result therefrom and (y) after giving effect thereto, Global Liquidity shall be greater than or equal to $275,000,000; 140812225 v1
(j) Investments (i) consisting of co-development agreements or the licensing or contribution of intellectual property, new drug applications or similar assets pursuant to development, marketing or manufacturing agreements, alliances or arrangements or similar agreements or arrangements with other Persons or (ii) in the form of contributions of IP Rights in connection with IP Monetization Transactions, in an aggregate amount for clauses (i) and (ii) taken together not to exceed (x) $400,000,000 minus (y) an amount equal to the aggregate outstanding principal amount of Indebtedness incurred under Section 7.02(l) minus (z) an amount equal to the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition Dispositions made under Section 7.05(j);
(determined as set forth in clause (gk) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to with the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage portion, if any, of the Available Equity Amount subsequent that the Borrower elects to the Closing Date as of such time;
(n) other Investments and other acquisitionsapply to this Section 7.03(k); provided that (A) immediately before and immediately after giving pro forma effect to any such Investment, no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom therefrom;
(l) Investments consisting of extensions of credit to the customers of the Borrower or of any of its Restricted Subsidiaries in the nature of accounts receivable, prepaid royalties, or notes receivable, arising from the grant of trade credit or licensing activities of the Borrower or such Restricted Subsidiary, in each case in the ordinary course of business;
(m) Investments received in settlement or partial settlement of obligations owed to the Borrower or any Restricted Subsidiary, including in satisfaction or compromise or partial satisfaction or compromise of judgments or claims or as a result of bankruptcy or insolvency proceedings or upon the foreclosure, perfection or enforcement of any Lien in favor of the Borrower or any Restricted Subsidiary;
(n) Investments the payment for which consists solely of Qualified Equity Interests of the Borrower;
(o) Payroll, travel and (B) similar advances to cover matters that are expected at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business and consistent with past practice;
(p) Non-exclusive licenses of IP Rights;
(q) Investments arising out of the repurchase of any Indebtedness of the Borrower or any Restricted Subsidiary
(r) Investments consisting of UCC Article 3 endorsements of negotiable instruments for deposit or collection or similar transactions in the aggregate amount ordinary course of all consideration paid business;
(s) any customary upfront, milestone, marketing or other funding payment in the ordinary course of business to another Person in connection with such acquisition obtaining a right to receive royalty or other payments in the future in connection with commercialization and/or collaboration agreements and any Investments in joint ventures or strategic alliances or collaboration agreements in an aggregate amount not to exceed $25,000,000 in any fiscal year;
(determined as set forth t) Investments by the Borrower in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the ObligorSwap Contracts permitted under Section 7.02(a); and
(ou) the purchase by the Borrower of any option (or similar instrument) to purchase Equity Interests (other Investments than Disqualified Stock) of the Borrower entered into contemporaneously and other acquisitionsotherwise in connection with the issuance of convertible notes otherwise permitted to be issued under this Agreement; provided that the aggregate consideration for such option or options shall not exceed $175.0 million plus the amount of any Net Cash Proceeds received by the Borrower from the sale of Equity 140812225 v1 Interests (Aother than Disqualified Stock) of the Borrower entered into contemporaneously and otherwise in connection with the purchase of such option and incurrence of such convertible notes; provided, further, that no Specified Default or Event of Default shall have has occurred and be is continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)therefrom.
Appears in 1 contract
Investments. None of the ParentMake or hold any Investments, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Permitted InvestmentsInvestments held by the Parent Borrower and its Subsidiaries in the form of Cash Equivalents;
(b) Investments existing on advances to officers, directors and employees of the Closing Date Parent Borrower and its Subsidiaries in Subsidiariesan aggregate amount not to exceed $5,000,000 at any time outstanding, for travel, entertainment, relocation and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date)analogous ordinary business purposes;
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Investments by the Parent Borrower and its Subsidiaries are Restricted in their respective Subsidiaries outstanding on the date hereof, (ii) additional Investments by the Parent Borrower and its Subsidiaries in Loan Parties and (iii) additional Investments by Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Borrower that are not Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and in other obligations of, Restricted Subsidiaries that are not Loan Parties Parties;
(excluding all such investmentsd) Investments of the Parent Borrower or any of its Subsidiaries 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, loans, advances and Investments of the Parent Borrower or any of its Subsidiaries received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(e) Guarantees permitted by Section 7.02;
(f) Investments existing on the date hereof and set forth on Schedule 5.08(e);
(g) Investments in Swap Contracts permitted under Section 7.02(a);
(h) [Reserved];
(i) Investments by clause Parent Borrower or any of its Subsidiaries; provided that after giving effect thereto on a Pro Forma Basis, the Payment Conditions are satisfied;
(bj) aboveloans and advances to employees of the Parent Borrower and its Subsidiaries (i) shall not, at any when made, made in the ordinary course of business in an aggregate principal amount not to exceed $15,000,000 1,000,000 in the aggregate at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” outstanding and (ii) to enable such employees to purchase stock of the amount Parent Borrower or its direct or indirect parent so long as the net proceeds of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject contributed to the limitation set forth in clause (c)(iii) aboveParent Borrower;
(ek) Guarantees by in lieu of making any Restricted Payment from the ParentParent Borrower to Holdings permitted pursuant to Section 7.06, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the ParentParent Borrower may make loans and advances to Holdings, the Obligor or any other proceeds of which are applied to the purpose for which the Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations Payment would be permitted pursuant to the Guaranty AgreementSection 7.06; and for purposes of Section 7.06, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness such loan or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party advance shall be subject to treated as if it were the limitation set forth in clause (c)(iii) aboveapplicable Restricted Payment;
(fl) Investments of any Person in existence at the form time such Person becomes a Subsidiary pursuant to Section 7.03(h) (other than Investments incurred solely in contemplation of Hedge Agreements permitted under Section 6.12such Person’s becoming a Subsidiary of the Parent Borrower);
(gm) Permitted Acquisitions[Reserved];
(hn) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees endorsements of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member negotiable instruments held for accounting purposes and that are made collection in the ordinary course of business;
(io) Investments received in connection with the bankruptcy or reorganization ofdeposits, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties prepayments and other extensions of credit to, customers credits to suppliers and suppliers that are not Affiliates of any Group Member and that are lessors made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(op) other Investments and other acquisitions; provided that (A) no Specified Default or Event made by any Loan Party arising from the receipt of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on non-cash consideration received in connection with a pro forma basis (Disposition made in each case, as certified by a Responsible Officer of the Obligor)compliance with Section 7.05.
Appears in 1 contract
Samples: Credit Agreement (Leslie's, Inc.)
Investments. None Neither Issuer will, and neither Issuer will permit any of the Parentits Subsidiaries to, the Obligor directly or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdindirectly, make or otherwise suffer to exist own any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Permitted InvestmentsCash Equivalents;
(b) (i) equity Investments existing on owned as of the Closing First Amendment Effective Date in Subsidiariesany Wholly-Owned Subsidiary of the Issuers, and other (ii) Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date)First Amendment Effective Date in Wholly-Owned Subsidiaries that are Subsidiary Guarantors;
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) Investments in any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) Securities received in satisfaction or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” partial satisfaction thereof from financially troubled account debtors and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parentdeposits, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness prepayments and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject credits to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are suppliers made in the ordinary course of businessbusiness consistent with the past practices of the Issuers or any of their Subsidiaries;
(d) intercompany Indebtedness to the extent permitted under clauses (b), (c) and (o) of Section 10.12;
(e) Guarantee Obligations to the extent permitted under Section 10.12(d);
(f) Consolidated Capital Expenditures;
(g) Investments in assets useful in the business of the Issuers and their Subsidiaries made by the Issuers or any of their Subsidiaries with the proceeds of any Reinvestment Deferred Amount (as defined in the Credit Agreement as in effect on the First Amendment Effective Date);
(h) loans and advances to employees of the Issuers or any of their Subsidiaries made in the ordinary course of business in compliance with applicable Requirements of Law (including Section 402 of the Xxxxxxxx-Xxxxx Act) in an aggregate principal amount not to exceed at any time $1,000,000;
(i) Investments received made in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts Permitted Acquisitions and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07Asset Sales, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made permitted pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor)Section 10.6; and
(oj) (i) equity Investments owned as of the First Amendment Effective Date in Persons that are not Wholly-Owned Subsidiaries of the Issuers and described on Schedule 10.16, and (ii) other Investments not permitted by any other clause of this Section 10.16 made after the First Amendment Effective Date in Persons that are not Wholly-Owned Subsidiaries that are Subsidiary Guarantors in an aggregate amount under this clause (ii) not to exceed at any time $80,000,000.”
18. Sections 11(c) and other acquisitions; provided that (A11(d) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor).Existing Note Purchase Agreement are hereby amended and restated in their entirety to read as follows:
Appears in 1 contract
Investments. None Company shall not, and shall not permit any of the Parentits Subsidiaries to, the Obligor directly or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdindirectly, make or otherwise suffer to exist own any Investment in any other Person, or except:
(i) Company and its Subsidiaries may make any Acquisition, other than:and own Investments in Cash Equivalents (as determined on the date of acquisition thereof);
(a) Permitted Investments;
(b) Company and its Subsidiaries may continue to own the Investments existing on owned by them as of the Closing Date in Subsidiariesany Subsidiaries of Company; (b) Company and its Domestic Subsidiaries may make additional Investments in Company or Subsidiary Guarantors (including without limitation any such Investments necessary in order to consummate the Tender Offer in accordance with the Tender Offer Materials, the Merger in accordance with the Merger Agreement and the Second Merger) subject to compliance with subsections 6.7 and 6.8; (c) any Foreign Subsidiary may make additional Investments in any other Foreign Subsidiary; and (d) Acquisition Co. may purchase the DAH Common Stock pursuant to the Tender Offer in accordance with the Tender Offer Materials;
(iii) Company and its Subsidiaries may make intercompany loans to the extent permitted under subsection 7.1(iv) and incur Contingent Obligations permitted by subsection 7.4;
(iv) Company and its Subsidiaries may make Investments existing in Wholly-Owned Subsidiaries that are Domestic Subsidiaries in an aggregate amount not exceeding $22,000,000 in order to consummate an acquisition substantially on the terms described to the Syndication Agent prior to the date hereof.
(v) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date and set forth on described in Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent7.3 annexed hereto and extensions or renewals thereof, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) no such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party extension or renewal shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing made in reliance on the date hereof and permitted by this clause (bv) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of if it would (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) increase the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected Investment at the time of such advances renewal or extension or (y) result in a Potential Event of Default or an Event of Default hereunder;
(vi) Company and its Subsidiaries may make and own Investments received in connection with Asset Sales permitted pursuant to be treated as expenses subsection 7.7(xii);
(vii) Investments constituting Consolidated Capital Expenditures (and any capital expenditures excluded from the definition of such Group Member Consolidated Capital Expenditures pursuant to clause (y) thereof);
(viii) Investments made by Company or any of its Subsidiaries in Permitted Acquisitions in accordance with subsection 7.7(vii);
(ix) Investments arising under or in connection with Interest Rate Agreements and Currency Agreements entered into in the ordinary course of business and not for accounting purposes speculative purposes;
(x) Company and that are made its Subsidiaries may make and own Investments received in connection with the bankruptcy or reorganization or suppliers and customers and in settlement of delinquent obligations of and other disputes with customers and suppliers arising in the ordinary course of business;
(ixi) Company and its Subsidiaries may make and own Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course form of business;
loans (jx) Investments held to officers, directors and employees of the Company and its Subsidiaries for the sole purpose of purchasing common stock of Parent (or purchases of such loans made by others) in an aggregate principal amount at any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each casetime outstanding not to exceed $5,000,000, so long as such Investments were not made in contemplation immediately before and after giving effect thereto, no Potential Event of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have has occurred and be is continuing or would result therefrom and (By) at to Global Technology Partners in an aggregate principal amount not to exceed $1,000,000 for the time each such Investment sole purpose of purchasing common stock of Parent;
(xii) Company and its Subsidiaries may make and own Investments solely from the proceeds of capital contributions by Parent to the Company or acquisition is purchasedsales of equity Securities by the Company to Parent, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each casecase only to the extent proceeds from such capital contribution or sale (x) are not required to be applied to repay the Term Loans or to reduce the Acquisition Loan Commitments pursuant to subsection 2.4(B)(iii)(c), as certified (y) arise from the issuance by a Responsible Officer Parent of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom its equity Securities, and (Bz) at are received after the time Closing Date for the purpose of making an Investment identified in a notice delivered to the Agents on or prior to the date such capital contribution or sale or repayment is made, so long as immediately before and immediately after giving effect to any such Investment Investment, no Potential Event of Default or acquisition, the Total Adjusted Net Leverage Ratio shall Event of Default has occurred and is continuing; and
(xiii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)at any time $10,000,000.
Appears in 1 contract
Investments. None of Neither the Parent, the Obligor or Borrower nor any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Personin, or make any AcquisitionAcquisition of any other Person, other than:
(a) Cash and Permitted Investments;
(b) Investments existing on the Closing Date in Subsidiaries, Subsidiaries and other Investments existing on the Closing Date or made pursuant to binding commitments in effect on the Closing Date and set forth on Schedule 6.07 and any modification, replacement, renewal or extension thereof; provided that the amount of the original Investment is not increased except by the terms of such Investment or as otherwise permitted by this Section 6.07 (but not any additions thereto (including any capital contributions) made after the Closing DateInvestments);
(c) investments (i) Investments between or among the Borrower and the Subsidiary Guarantors and (ii) Investments by the Parent, the Obligor Borrower and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (ix) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent Borrower prior to or contemporaneously with the making of such investmentsInvestment, (iiy) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iiiz) the aggregate amount of such investments Investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investmentsInvestments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, not exceed the greater of (a) $15,000,000 55,000,000 and (b) 25.0% of Consolidated EBITDA at any time outstandingthe greater of outstanding excluding, in each case, Investments made in such Restricted Subsidiary (x) $20,000,000 and in the ordinary course of business or (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) fund or 5.04(b) prior to the date of such Investmentfinance a Permitted Acquisition or other Investment in a Restricted Subsidiary;
(d) loans or advances made by the Parent, the Obligor Borrower or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (b) or (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iiic)(ii)(z) above;
(e) (i) Guarantees by the Parent, the Obligor Borrower or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor Borrower or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (iA) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed guaranteed the Obligations pursuant to the Guaranty Agreementand such Guaranty is in full force and effect, (iiB) a Restricted Subsidiary that has not Guaranteed guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iiiC) the Parent Borrower shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Loan Documents or of Indebtedness permitted by clause (b) or (ef) of the definition of the term “Permitted Debt”, ” and (ivD) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iiic)(ii) above; and (ii) guarantees by the Borrower or any Restricted Subsidiary of leases (other than Capital Lease Obligations) or of other obligations of the Borrower or any of its Subsidiaries that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12entered into in the ordinary course of business and not for speculative purposes;
(g) Permitted Acquisitions;
(hi) Any any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of businessbusiness and (ii) loans or advances to directors, officers and employees of a Group Member for any other purpose not to exceed $15,000,000 in the aggregate at any time outstanding;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case case, in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 (Investments) or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 (No Liquidation, Merger or Consolidation) and this Section 6.076.07 (Investments), in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.046.04 (Sale of Assets);
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits or prepayments made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, business and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other de minimis Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) the incorporation or formation of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such timeany newly created Subsidiaries;
(n) other intercompany loans and advances to the extent permitted under Section 6.02 (Indebtedness);
(o) Investments in respect of lease, utility and other acquisitions; provided that similar deposits in the ordinary course of business;
(Ap) so long as no Specified Default or Event of Default shall have occurred and be continuing continuing, Investments made with the Retained Excess Cash Flow Amount that could have been applied to the making of Restricted Payments in compliance with the satisfaction of the conditions thereto; provided, however, that, any repayment of any loans or would result therefrom advances and (B) at the time each such interest thereon in respect of any loan or advance constituting an Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in pursuant to this clause (gp) shall be deemed to be part of the definition of “Permitted Acquisition”Retained Excess Cash Flow Amount and may be distributed under Section 6.03(a)(xiv) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor).
Appears in 1 contract
Investments. None Not, and not permit any of the Parent, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdits ----------- Subsidiaries to, make or otherwise suffer permit to exist remain outstanding any Investment in any other Person, or make any Acquisition, other thanInvestments except:
(ai) Investments outstanding on the date of Amendment No. 3 hereto;
(ii) operating deposit accounts with banks;
(iii) cash and Permitted Investments;
(biv) Investments existing on by the Closing Date Company and its Subsidiaries in the Company and its Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(cv) investments Hedging Agreements entered into by the Parent, the Obligor and the other Restricted Company or its Subsidiaries in Equity Interests in the ordinary course of their Restricted Subsidiaries business and not for speculative purposes; AMENDMENT NO. 3 (including as capital contributions to such Restricted SubsidiariesSOLUTIA FIVE YEAR CREDIT AGREEMENT); provided that
(ivi) such Restricted Subsidiaries are Restricted Subsidiaries Investments consisting of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness security deposits with utilities and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are like Persons made in the ordinary course of business;
(ivii) advances to employees in the ordinary course of business;
(viii) Investments received in connection with the bankruptcy or reorganization ofof suppliers, customers and other Persons having obligations in favor of the Company or any Subsidiary in settlement of delinquent accounts obligations of, and other disputes withwith customers, customers suppliers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case such other Persons arising in the ordinary course of business;
(jix) Investments held by any Restricted Subsidiary in Astaris (x) consisting of its obligations under the Equity Interests Astaris Guaranty Agreement or (y) consisting of payments made pursuant to the Astaris Guaranty Agreement, as the Astaris Guaranty Agreement is in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence effect on the date of such acquisition, merger Amendment No. 3 hereto and without giving affect to any amendments or consolidationsupplements made to the Astaris Guaranty Agreement after said date;
(kx) Investments (x) consisting of its obligations under the Co-gen Guaranty Agreement and the Co-gen Lease or (y) consisting of payments made pursuant to the Co-gen Guaranty Agreement and the Co-gen Lease, as a result the Co-gen Guaranty Agreement and the Co-gen Lease are in effect on the date of Amendment No. 3 hereto and without giving effect to any amendments or supplements made to the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;Co-gen Guaranty Agreement or the Co-gen Lease after said date; and
(lxi) additional Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, up to but not exceeding $25,000,000 in the ordinary course aggregate. For purposes of business, and clause (iiixi) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquiredthis Section, the aggregate amount of such an Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) at any time shall not exceed an amount be deemed to be equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant cash, together with the aggregate fair market value of property, loaned, advanced, contributed, transferred or otherwise invested that gives rise to this clause (m) subsequent to the Closing Date as of such time and Investment minus (B) the ----- aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as dividends, distributions or other payments received in cash in respect of such time;
(n) other Investments and other acquisitionsInvestment; provided that (A) no Specified Default or Event the amount of Default an Investment shall have occurred and not in any event be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount reduced by reason of any write-off of such Investment or nor increased by any increase in the aggregate amount of all consideration paid earnings retained in connection with such acquisition (determined as set forth the Person in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any which such Investment is made that have not been dividended, distributed or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)otherwise paid out.
Appears in 1 contract
Samples: Credit Agreement (Solutia Inc)
Investments. None of the Parent, the Obligor Make or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, or permit any Subsidiary of Parent to make or otherwise suffer to exist hold, any Investment in any other Person, except prior to the initial Borrowings on the Closing Date (x) to the extent permitted under Section 7.06 of the Existing Parent Credit Agreement (as in effect on the date hereof) or make (y) any Acquisitionother transaction to the extent the restriction of such transaction by this Agreement is prohibited by Section 7.17 of the Existing Parent Credit Agreement (as in effect on the date hereof), other than:and from and after the initial Borrowings on the Closing Date except (without duplication):
(a) Permitted Investments(i) equity Investments by (x) Parent and its Subsidiaries in their Subsidiaries outstanding on the date hereof and (y) Target and its Subsidiaries in their Subsidiaries outstanding on the Closing Date and (ii) Parent and each Subsidiary of Parent may make cash equity contributions to any of its Wholly-Owned Subsidiaries; provided that:
(I) at no time shall the aggregate amount of all cash equity contributions made pursuant to subclause (ii) of this clause (a) by a Qualified Loan Party to any Subsidiary of Parent that is not a Qualified Loan Party (exclusive of cash contributions made to a Subsidiary of Parent that is not a Qualified Loan Party which are promptly contributed, in turn, to a Qualified Loan Party), when added to the aggregate outstanding principal amount of all intercompany loans made by a Qualified Loan Party to any Subsidiary of Parent that is not a Qualified Loan Party pursuant to clause (f) below (determined without regard to write-downs or write-offs thereof), exceed $125,000,000;
(II) at no time shall the aggregate amount of all cash equity contributions made pursuant to subclause (ii) of this clause (a) by Parent and any US Subsidiary to any Foreign Subsidiary (exclusive of cash contributions made to a Foreign Subsidiary which are promptly contributed, in turn, to a US Subsidiary), when added to the aggregate outstanding principal amount of all intercompany loans made by Parent and any US Subsidiary to any Foreign Subsidiary pursuant to clause (f) below (determined without regard to write-downs or write-offs thereof), exceed $75,000,000; and
(III) no cash equity contributions may be made pursuant to subclause (ii) of this clause (a) (x) by a Qualified Loan Party to any Subsidiary of Parent (other than a Qualified Loan Party) (exclusive of cash contributions made to a Subsidiary of Parent (other than a Qualified Loan Party) which are promptly contributed, in turn, to a Qualified Loan Party) or (y) by Parent and any US Subsidiary to any Foreign Subsidiary (exclusive of cash contributions made to a Foreign Subsidiary which are promptly contributed, in turn, to a US Subsidiary), at any time any Default or any Event of Default is in existence (or would be in existence after giving effect thereto);
(b) Investments existing on loans and advances to employees in the Closing Date ordinary course of the business of Parent and its Subsidiaries as presently conducted in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but an aggregate principal amount not to exceed $5,000,000 at any additions thereto (including any capital contributions) made after the Closing Date)time outstanding;
(c) investments Investments by the Parent, the Obligor Parent and the other Restricted its Subsidiaries in Equity Interests in their Restricted Subsidiaries Cash Equivalents;
(including as capital contributions to such Restricted Subsidiaries); provided that (id) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees Investments existing on the date hereof (or, in the case of joint ventures in the Target Group, on the Closing Date) and permitted by clause (bdescribed on Schedule 5.18(e) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) abovehereto;
(e) Guarantees Investments by the ParentLoan Parties in Hedge Agreements permitted under Section 7.02(a);
(f) Parent and its Subsidiaries may each make intercompany loans to any Wholly-Owned Subsidiary of Parent or Parent (such intercompany loans and advances referred to in this clause (f), collectively, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty“Intercompany Loans”); provided that
(I) at no time shall the aggregate outstanding principal amount of all intercompany loans made by Qualified Loan Parties to any Subsidiary of Parent that (i) is not a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations Qualified Loan Party pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by this clause (bf) (determined without regard to write-downs or (e) of the definition of the term “Permitted Debt”write-offs thereof), and (iv) when added to the aggregate amount of Indebtedness and other obligations the cash equity contributions made pursuant to subclause (ii) of Restricted Subsidiaries that are not clause (a) above by a Qualified Loan Parties Party to any Subsidiary of Parent that is Guaranteed not a Qualified Loan Party (exclusive of cash contributions made to a Subsidiary of Parent that is not a Qualified Loan Party which are promptly contributed, in turn, to a Qualified Loan Party), exceed $125,000,000;
(II) at no time shall the aggregate outstanding principal amount of all intercompany loans made by Parent and any of its US Subsidiaries to any Foreign Subsidiary pursuant to this clause (f) (determined without regard to write-downs or write-offs thereof), when added to the aggregate amount of the cash equity contributions made pursuant to subclause (ii) of clause (a) above by Parent and any of its US Subsidiaries to any Foreign Subsidiary (exclusive of cash contributions made to a Foreign Subsidiary which are promptly contributed, in turn, to a US Subsidiary), exceed $75,000,000;
(III) unless the respective obligor under such intercompany loan reasonably determines that the execution, delivery and performance of an Intercompany Note is prohibited by, or that such Intercompany Note would not be enforceable against such obligor under, applicable local law, any such intercompany loan made pursuant to this clause (f), together with all Surviving Debt consisting of intercompany loans, shall be evidenced by an Intercompany Note;
(IV) no intercompany loans may be made pursuant to this clause (f) (x) by a Qualified Loan Party to any Subsidiary of Parent that is not a Qualified Loan Party or (y) by Parent and any US Subsidiary to any Foreign Subsidiary, at any time any Default or any Event of Default is in existence (or would be in existence after giving effect thereto);
(V) each intercompany loan made pursuant to this clause (f), together with all Surviving Debt consisting of intercompany loans, to a Loan Party shall be subject to subordination pursuant to the limitation set forth in clause (c)(iii) aboveIntercompany Subordination Agreement;
(VI) if the obligor or obligee thereunder ceases to constitute a Subsidiary of Parent, any Intercompany Loans to which such obligor or obligee is a party outstanding on such date of cessation pursuant to this clause (f) Investments in the form of Hedge Agreements shall cease to be permitted under Section 6.12clause (f); and
(VII) if the obligor or obligee thereunder ceases to constitute a Qualified Loan Party or a Wholly-Owned Subsidiary of Parent, for the purposes of determining compliance with this clause (f); any Intercompany Loans to which such obligor or obligee is a party outstanding on such date of cessation shall be deemed to have been made on the date of such cessation (after giving effect thereto);
(g) Permitted Acquisitions;
Investments (hincluding Debt obligations) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or of suppliers and customers and in settlement of delinquent accounts obligations of, and other disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case suppliers arising in the ordinary course of business;
(j) Investments held by any Restricted business to the extent that Parent or relevant Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date was a creditor of such acquisition, merger customer or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) supplier at the time of and immediately after giving effect to any filing of such Investment bankruptcy, reorganization or acquisition, at the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each casetime such obligation became delinquent or such dispute arose, as certified by a Responsible Officer of the Obligor).case may be;
Appears in 1 contract
Samples: Credit Agreement (Colfax CORP)
Investments. None The Borrower shall not, and shall not permit any of the Parentits Subsidiaries to, the Obligor directly or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, indirectly make or otherwise suffer to exist maintain any Investment in any other Person, or make any Acquisition, other thanexcept for the following:
(a) Permitted InvestmentsInvestments existing on the date of this Agreement and disclosed on SCHEDULE 8.3 (EXISTING INVESTMENTS);
(b) Investments existing on in cash and Cash Equivalents held in a Cash Collateral Account or a Control Account with respect to which the Closing Date in Subsidiaries, and other Investments existing on Administrative Agent for the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after benefit of the Closing Date)Secured Parties has a first priority perfected Lien;
(c) investments by Investments in accounts, contract rights and chattel paper (each as defined in the ParentUCC), notes receivable and similar items arising or acquired from the Obligor and sale of Inventory in the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries ordinary course of business consistent with the past practice of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral Borrower and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investmentits Subsidiaries;
(d) loans or advances made by Investments received in settlement of amounts due to the Parent, the Obligor Borrower or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made Borrower effected in the ordinary course of business;
(e) Investments by (i) the Borrower in any Subsidiary Guarantor or by any Subsidiary Guarantor in the Borrower or any other Subsidiary Guarantor, (ii) a Subsidiary of the Borrower that is not a Subsidiary Guarantor in the Borrower or any other Subsidiary of the Borrower or (iii) the Borrower or any Subsidiary Guarantor in a Subsidiary that is neither a Subsidiary Guarantor nor a Permitted Joint Venture; PROVIDED, HOWEVER, that the aggregate outstanding amount of all such Investments received in connection with pursuant to this CLAUSE (iii) shall not exceed $20,000,000 at any time;
(f) loans or advances to employees of the bankruptcy Borrower or reorganization of, or settlement any of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case its Subsidiaries in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07; PROVIDED, in each caseHOWEVER, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount aggregate principal amount of all such loans and advances shall not exceed $1,000,000 at such time, minus any time and (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as proceeds of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent loans or advances are used solely to the Closing Date as of reimburse such timeemployee for relocation expenses actually incurred;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) Investments constituting Guaranty Obligations permitted by SECTION 8.1 (INDEBTEDNESS);
(h) direct or indirect ordinary course of the definition business Investments in Permitted Joint Ventures engaged in an Eligible Line of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor)Business; and
(oi) other Investments and other acquisitionsnot otherwise permitted hereby; provided provided, however, that (A) no Specified Default or Event the aggregate outstanding amount of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any all such Investment or acquisition, the Total Adjusted Net Leverage Ratio Investments shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)$5,000,000 at any time.
Appears in 1 contract
Samples: Credit Agreement (Washington Group International Inc)
Investments. None Make any advance, loan, extension of the Parentcredit (by way of guaranty or otherwise) or capital contribution to, the Obligor or purchase any Capital Stock, bonds, notes, debentures or other debt securities of, or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not assets constituting a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Personbusiness unit of, or make any Acquisitionother investment in, other than:any Person (all of the foregoing, “Investments”):
(a) Permitted Investments;
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries accounts receivable, prepaid expenses and other extensions of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required trade credit by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Covenant Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(iii) Investments received in connection Cash Equivalents;
(iii) Guarantee Obligations permitted by Section 7.2;
(iv) intercompany Investments by any Covenant Party in the Borrower or any Person that, upon, prior to and following such investment, is a Subsidiary Guarantor and by any Subsidiary that is not a Guarantor in any other Subsidiary; provided, however, that any such Investments in any Insurance Subsidiary must be made in compliance with clause (s) below;
(v) Investments existing on the bankruptcy Amendment and Restatement Effective Date and listed on Schedule 7.8(e);
(vi) Capital Expenditures made by Borrower or reorganization ofany Subsidiary on behalf of Borrower or such Subsidiary to the extent permitted by Section 7.7;
(vii) Permitted Acquisitions;
(viii) the formation of and Investments in new Subsidiaries of the Borrower that are or, or settlement upon consummation of delinquent accounts and disputes withsuch Investments, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, become Subsidiary Guarantors that in each case do not constitute Permitted Acquisitions;
(ix) the Borrower and its Subsidiaries may receive and own Capital Stock or other investments acquired as non-cash consideration pursuant to dispositions permitted under Section 7.5;
(x) the Borrower and its Subsidiaries may make pledges and deposits permitted under Section 7.3;
(xi) the Borrower and its Subsidiaries may hold Investments to the extent such Investments reflect an increase in the value of Investments and would otherwise exceed the limitations herein;
(xii) Investments consisting of endorsements for collection or deposit in the ordinary course of business;
(jxiii) Investments held by any Restricted Subsidiary in deposit accounts opened and maintained in the Equity Interests ordinary course of business;
(xiv) the Borrower may acquire and hold promissory notes of employees of Borrower or its Subsidiaries in which are acquired after the Closing Date connection with such Person’s purchase of Permitted Capital Stock of Parent or Holdings;
(xv) Investments received in compliance with this Section 6.07 or held by any Person merged into or consolidated connection with any Group Member after bankruptcy or reorganization of, or any good faith settlement of delinquent accounts and disputes with, any customer or supplier arising in the Closing Date ordinary course of business;
(xvi) the Borrower may enter into agreements that are permitted by Section 7.2(k);
(xvii) any Investments consisting of deferred compensation owed to employees of Parent, the Borrower and their respective Subsidiaries;
(xviii) formation of and Investments by the Covenant Parties in compliance Subsidiaries (other than Insurance Subsidiaries) that are not Guarantors, which in the case of Investments made by the Borrower or a Guarantor, do not exceed $10,000,000 at any time outstanding;
(xix) formation of and Investments by the Borrower or any Subsidiary in any Insurance Subsidiary (including in respect of the formation thereof) not exceeding $15,000,000 at any one time outstanding;
(xx) Investments consisting of loans and advances to employees, officers and directors of any Covenant Party or any physician affiliated with Section 6.06 the Borrower or any of its Subsidiaries or any employee of any such physician (including without limitation for travel, entertainment and this Section 6.07relocation expenses) not exceeding $7,000,000 in the aggregate at any time outstanding;
(xxi) Investments in Joint Ventures acquired pursuant to a Permitted Acquisition, in each case, so long as which Joint Ventures existed at the time of such Investments Permitted Acquisition and were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidationPermitted Acquisition;
(kxxii) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase funding of goods contributions under any non-qualified retirement plan or services or similar employee compensation plan in an amount not to exceed the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or compensation expense recognized by the aggregate amount of all consideration paid Borrower and its Subsidiaries in connection with such acquisition plans;
(determined as set forth xxiii) [Reserved];
(xxiv) other Investments that do not exceed, in clause the aggregate since the Amendment and Restatement Effective Date, $35,000,000;
(gxxv) of Investments by the definition of “Permitted Acquisition”) shall Borrower and its Subsidiaries at any time in an aggregate amount not to exceed an amount equal to (i) the Available Applicable Equity Amount at such time;
(xxvi) Investments consisting of the licensing or contribution of Intellectual Property pursuant to joint marketing arrangements with other Persons;
(xxvii) Investments consisting of good faith deposits required in connection with Permitted Acquisitions (or other permitted Investments);
(xxviii) loans to Parent to the extent Borrower or the applicable Subsidiary could have made a Restricted Payment under another clause of this Section 7.8; provided that such Restricted Payment will at such time be deemed to have been made pursuant to such other clause;
(xxix) Investments to the extent transactions effected pursuant to Section 7.4 or Section 7.5(g) are deemed to be Investments;
(xxx) formation of and Investments by the Covenant Parties in Controlled Subsidiary Non-Guarantors; provided that upon the making of such an Investment by the Borrower or a Subsidiary Guarantor in excess of $10,000,000 and after giving pro forma effect thereto and any Indebtedness incurred in connection therewith, minus (i) after giving effect to such Investment (including any Indebtedness resulting therefrom or incurred in connection therewith), the Borrower shall be in compliance with the provisions of Section 7.1, calculated on a pro forma basis as of the end of the period most recently ended prior to the date of the consummation of such Investment for which financial statements were required to have been delivered pursuant to Section 6.1(a) or (b) (calculated as though all Indebtedness resulting from or incurred in connection with such Investment had been incurred at the beginning of the relevant four quarter period); and (ii) after giving effect to such Investment, the sum Available Revolving Commitments of all Lenders (Aprovided that, for purposes of this clause (dd), the Available Revolving Commitments of all Non-Extended Revolving Lenders shall be excluded from the Available Revolving Commitments from and after the date that is three months prior to the Non-Extended Revolving Termination Date) plus the aggregate amount of unrestricted cash and Cash Equivalents then owned by the Borrower and its Subsidiaries shall not be less than $15,000,000; provided that in calculating the amount of unrestricted cash and Cash Equivalents for purposes of this subclause (ii), the cash and Cash Equivalents of any Subsidiary that is not a Subsidiary Guarantor shall (x) only be included up to the percentage of such cash and Cash Equivalents equal to the percentage of the outstanding Capital Stock of such Subsidiary held (directly or indirectly) by Borrower and (y) only be included to the extent that such Subsidiary is not restricted from distributing such cash or Cash Equivalents to the Borrower or any Subsidiary Guarantor by the terms of any Contractual Obligation (other than under any Loan Document) or Requirement of Law applicable to such Subsidiary; provided that this clause (y) shall not apply to the extent such Subsidiary can make an intercompany loan of such cash or Cash Equivalents to Borrower or a Subsidiary Guarantor; provided further that Investments made pursuant to this clause Section 7.8(dd) (m) subsequent other than to the Closing Date as extent such Investments are funded with the proceeds of such time and (BIndebtedness issued pursuant to Section 7.2(m)) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent may not be used to the Closing Date as of such time;
(n) other fund Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligorpursuant to Section 7.8(ee); and
(oxxxi) other Investments by Subsidiaries that are not Guarantors, including Controlled Subsidiary Non Guarantors and other acquisitions; provided that (A) no Specified Default Medical Developers, made with proceeds of Investments from the Borrower or Event another Subsidiary, from the incurrence of Default permitted Indebtedness or internally generated funds. The amount of any Investment shall have occurred and be continuing or would result therefrom and (B) at the time initial amount of and immediately after giving effect to any such Investment or acquisitionand any addition thereto, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis as reduced by any repayment of principal (in each case, as certified by the case of an Investment constituting Indebtedness) or any distribution constituting a Responsible Officer return of cash (in the Obligorcase of any other Investment).
Appears in 1 contract
Samples: Amendment Agreement (Radiation Therapy Services Holdings, Inc.)
Investments. None of the ParentMake any Investments, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Permitted InvestmentsInvestments held in the form of cash or constituting Cash Equivalents at the time acquired;
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on as of the Closing Date and set forth on Schedule 6.07 (but not 8.02 to the Disclosure Letter and any additions thereto (including any capital contributions) Investments to be made after pursuant to existing written commitments set forth on Schedule 8.02 to the Closing Date)Disclosure Letter;
(c) investments Investments by the Parent, Borrower or any Subsidiary existing on the Obligor and Closing Date in the other Restricted Subsidiaries in Equity Interests of its Subsidiaries;
(d) Investments made by the Borrower in their Restricted Subsidiaries (including as capital contributions or to such Restricted Subsidiaries)any Subsidiary and made by any Subsidiary in or to the Borrower or any other Subsidiary; provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments Investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted in or to Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 outstanding at any time outstandingthe greater of (x) $20,000,000 and (y) 15shall not exceed 5.0% of IKE-Adjusted EBITDA the Borrower’s Consolidated Total Assets (determined as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered fiscal quarter of the Borrower prior to each Investment made pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
this clause (d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above));
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of credit in the nature of accounts receivable (including intercompany receivables and intercompany charges or expenses) or notes receivable arising from the grant of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, credit in the ordinary course of business, and (iii) notes receivable of, prepayments or prepaid royalties and other extensions of credit to, customers and credits to suppliers that are not Affiliates of any Group Member and that are or vendors made in the ordinary course of businessbusiness and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(f) Guarantees permitted by Section 8.03;
(g) the ExactTarget Acquisition and any Indebtedness contemplated by, and meeting the requirements of, Section 6.14 of the Acquisition Agreement;
(h) Permitted Acquisitions;
(i) Investments held by any Person that becomes a Subsidiary of the Borrower after the date hereof pursuant to a Permitted Acquisition; provided that such Investments are existing at the time such Person becomes a Subsidiary of the Borrower and were not made in contemplation of such Permitted Acquisition;
(j) Swap Contracts permitted by Section 8.03(d) and Permitted Call Spread Swap Agreements;
(k) to the extent permitted by Section 8.05, Investments consisting of non-cash consideration received for any Disposition permitted by Section 8.05;
(l) Investments that consist of or result from a merger or consolidation permitted by Section 8.04;
(m) other Investments advances to officers, directors and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) employees of the definition Borrower and Subsidiaries made in the ordinary course of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such timebusiness and substantially consistent with past practice for travel, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time entertainment, relocation, commission advances and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such timeanalogous ordinary business purposes;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at to the time each such Investment or acquisition is purchasedextent constituting an Investment, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor)Liens; and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at a nature not contemplated in the time of and immediately after giving effect foregoing clauses in an amount not to exceed $100,000,000 in the aggregate in any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer fiscal year of the Obligor)Borrower.
Appears in 1 contract
Investments. None No Borrower will, nor will it permit any of the Parent, the Obligor or any other its Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdSubsidiaries to, make or otherwise suffer permit to exist remain outstanding any Investment in any other Person, or make any Acquisition, other thanInvestments except:
(a) Investments outstanding on the date hereof and identified in Part B of Schedule 3.16 of the Disclosure Supplement;
(b) Permitted Acquisitions;
(c) Permitted Investments;
(bd) Investments existing on the Closing Date in intercompany loans made by GEO to Restricted Subsidiaries and by Restricted Subsidiaries to GEO or to other Restricted Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and intercompany loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are both not Loan Parties Corrections and not a Guarantor (i) may not exceed $25,000,000 in an aggregate principal amount at any time outstanding and (ii) shall be subject evidenced by commercially reasonable promissory notes pledged and delivered to the limitation set forth in clause (c)(iii) aboveAdministrative Agent pursuant to the Collateral Agreement;
(e) Guarantees by the ParentHedging Agreements entered into to hedge, the Obligor manage or any other Restricted Subsidiary of Indebtedness mitigate risks to which GEO or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under is exposed in the Bond Documents conduct of its business or the management of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) aboveits liabilities;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12operating deposit accounts with banks;
(g) Permitted Acquisitionsto the extent they constitute Investments, contributions to Plans and Multiemployer Plans;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of businessGuarantees permitted by Section 6.01;
(i) Investments received in connection consisting of security deposits with the bankruptcy or reorganization of, or settlement of delinquent accounts utilities and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case other like Persons made in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired Unrestricted Subsidiaries, joint ventures and/or Other Consolidated Persons (x) in an aggregate amount for all such Investments made after the Closing Date in compliance with this Section 6.07 date hereof not to exceed $60,000,000 (the “Cumulative Cap”) or held by any Person merged into (y) made for the purpose of constructing Facilities or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, improvements to Facilities for so long as such Investments were are not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on outstanding more than two years from the date of the Investment, provided that (i) the Cumulative Cap shall be increased from time to time by the aggregate amount of dividends, distributions, returns of capital or other payments received in cash after the Restatement Effective Date by GEO and the Restricted Subsidiaries from Unrestricted Subsidiaries in respect of Equity Interests of Unrestricted Subsidiaries (except that any such acquisitionamount included in Net Income shall increase the Cumulative Cap by only 50% of such amount) and (ii) in the case of Investments made as permitted by the foregoing clause (y) (A) all such Investments made in Persons that are not wholly-owned Unrestricted Subsidiaries shall be in the form of senior secured or unsecured loans, merger shall have no contractual restrictions or consolidationlimitations on repayment and shall be evidenced by promissory notes delivered in pledge under the Collateral Agreement, (B) not later than the second anniversary of each such Investment, the amount thereof shall be recovered by GEO or the relevant Restricted Subsidiary, as the case may be, in cash in the form of repayment of principal (in the case of loans) or return of capital (in the case of equity) and (C) the aggregate amount of such Investments shall not exceed $75,000,000 at any time outstanding (calculated as the aggregate amount invested minus the aggregate amount recovered, as described in the foregoing clause (B));
(k) Investments in an aggregate amount (excluding Equity Interests of GEO and/or its Subsidiaries but including the assumption of Indebtedness in connection with such Investments) made as a result after the date hereof not exceeding the amount of Net Available Proceeds from Equity Issuances consummated after the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04date hereof and not used to make Permitted Acquisitions;
(l) additional Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, not exceeding $40,000,000 in the ordinary course aggregate at any time outstanding;
(m) Investments in Subsidiaries of business, GEO outstanding on the date hereof (and any refinancing thereof provided that the aggregate principal amount thereof is not increased);
(iiin) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are Investments made in the ordinary course of business;business in customers constituting capital leases entered into with such customers in connection with contracts for services entered into by GEO and/or any Restricted Subsidiary with such customers; and
(mo) other Investments and other acquisitions; provided that, at the time each such Investment in Restricted Subsidiaries that are Corrections or acquisition is purchased, made or otherwise acquiredGuarantors. For purposes of Section 6.04(l), the aggregate outstanding amount of such an Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) at any time shall not exceed an amount be deemed to be equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant cash, together with the aggregate fair market value of property, loaned, advanced, contributed, transferred or otherwise invested that gives rise to this clause (m) subsequent to the Closing Date as of such time and Investment minus (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as dividends, distributions or other payments received in cash or property in respect of such time;
(n) other Investments and other acquisitionsInvestment; provided that (A) no Specified Default or Event the amount of Default an Investment shall have occurred and not in any event be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount reduced by reason of any write-off of such Investment or nor increased by any increase in the aggregate amount of all consideration paid earnings retained in connection with such acquisition (determined as set forth the Person in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any which such Investment is made that have not been dividended, distributed or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)otherwise paid out.
Appears in 1 contract
Samples: Credit Agreement (Geo Group Inc)
Investments. None of the ParentMake or hold any Investments, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Investments by the Borrower or a Restricted Subsidiary in assets that were Cash Equivalents when such Investments were made; provided, however, that (i) at any time Revolving Credit Loans and/or Swing Line Loans are outstanding, the aggregate amount of Unrestricted cash and Cash Equivalents held by the Borrower and its Restricted Subsidiaries shall not exceed $15,000,000 for any period of five consecutive Business Days and (ii) the aggregate amount of Cage Cash maintained by the Borrower and the Restricted Subsidiaries (A) shall not exceed the amount of cash, determined by the Borrower in its reasonable business judgment consistent with past practices, desirable in the ordinary course of business to be maintained in the Hotel/Casino Facilities and (B) shall not exceed $60,000,000 (or such higher amount of Cage Cash as shall be required by the Gaming Authorities for the Borrower and the Restricted Subsidiaries in the aggregate as set forth in a written notice from the Borrower to the Administrative Agent and the Lenders) for any period of five consecutive Business Days, provided, further, that, upon a Permitted InvestmentsAcquisition, the maximum amount specified in this clause (B) shall be increased to an amount reasonably determined by the Borrower (subject to the consent of the Administrative Agent (not to be unreasonably withheld)) to reflect any increase in the aggregate amount of Cage Cash of the Borrower and the Restricted Subsidiaries desirable in the ordinary course of business in connection with such Permitted Acquisition;
(b) Investments existing on loans or advances to officers, directors, board managers and employees of the Closing Date Borrower and the Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes so long as made in Subsidiariesaccordance with applicable law, and (ii) in connection with such Person’s purchase of Equity Interests of Holdco (provided that the amount of such loans and advances described in this clause (b) (ii) shall be contributed to the Borrower in cash as common equity); provided the aggregate principal amount of all loans and advances made in reliance on this clause (b) shall not exceed $1,000,000 at any time outstanding;
(c) Investments by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary;
(d) 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;
(e) Investments consisting of Liens, Indebtedness, fundamental changes, Dispositions and Restricted Payments permitted under Sections 7.01, 7.03, 7.04, 7.05 and 7.06, respectively;
(f) Investments existing on the Closing Date and set forth on Schedule 6.07 7.02(f) by the Borrower or any Restricted Subsidiary in the Borrower or any other Restricted Subsidiary; provided that the amount of the original Investment is not increased except by the terms of such Investment or as otherwise permitted by this Section 7.02;
(g) Investments in Swap Contracts permitted under Section 7.03;
(h) promissory notes and other noncash consideration received in connection with Dispositions permitted by Section 7.05;
(i) the purchase or other acquisition after the Closing Date of property and assets or businesses of any Person or of assets constituting a business unit, a line of business or division of such Person, or Equity Interests in a Person that, upon the consummation thereof, will be a Subsidiary of the Borrower (including as a result of a merger or consolidation); provided that, with respect to each purchase or other acquisition made pursuant to this Section 7.02(i) (each, a “Permitted Acquisition”):
(A) with respect to any Permitted Acquisition having Aggregate Consideration equal to or greater than $10,000,000, the Borrower shall (1) deliver to the Administrative Agent, on behalf of the Lenders, no later than ten (10) Business Days (or such later date as determined by the Administrative Agent in its reasonable discretion) prior to the date on which any such purchase or other acquisition is consummated, written notice thereof, (2) use reasonable best efforts to deliver to the Administrative Agent promptly, but in no event later than the consummation of such purchase or acquisition, copies of the applicable purchase agreement and all other material transaction documents and other information in connection therewith reasonably requested by the Administrative Agent and (3) deliver to the Administrative Agent, no later than five (5) Business Days (or such later date as determined by the Administrative Agent in its reasonable discretion) prior to the date on which any such purchase or acquisition is consummated, a certificate of Responsible Officer, in form and substance reasonably satisfactory to the Administrative Agent, specifying whether any newly created or acquired Subsidiary will result therefrom and whether such Subsidiary will constitute a Restricted Subsidiary or Unrestricted Subsidiary;
(B) the Aggregate Consideration paid in respect of such Permitted Acquisition, together with the Aggregate Consideration paid in respect of all other Permitted Acquisitions since the Closing Date (excluding the GVR Acquisition and further excluding, in each case, amounts funded using the proceeds of Revolving Credit Loans or Swing Line Loans), shall not exceed the sum of (1) the Net Cash Proceeds of Permitted Equity Issuances (other than Permitted Equity Issuances made pursuant to Section 8.05) received after the Closing Date that are Not Otherwise Applied plus (2) Cumulative Excess Cash Flow to the extent Not Otherwise Applied;
(C) the acquired property, assets, business or Person is in the same line of business as the Borrower or a Restricted Subsidiary;
(D) if all or any additions thereto portion of such purchase or acquisition is funded by the proceeds of Revolving Credit Loans or Swing Line Loans, each Hotel/Casino Facility subject to such purchase or acquisition is located in the Las Vegas Locals Market;
(i) all property and assets acquired by the Borrower or any Restricted Subsidiary in such purchase or other acquisition shall constitute Collateral (unless the same constitute Excluded Assets) in accordance with Section 6.11 and (ii) each Subsidiary created or acquired in connection with such Permitted Acquisition that will constitute a Restricted Subsidiary shall become a Guarantor and cause all of its respective property and assets to become Collateral (unless the same constitute Excluded Assets) in accordance with Section 6.11;
(F) if any portion of the Aggregate Consideration for such Permitted Acquisition is funded using the proceeds of Revolving Credit Loans or Swing Line Loans (other than Revolving Credit Loans or Swing Line Loans drawn using Availability created by repayments of Revolving Credit Loans and Swing Line Loans using proceeds of Cumulative Excess Cash Flow that is Not Otherwise Applied), the aggregate outstanding principal amount of Indebtedness assumed or incurred by the Borrower and its Subsidiaries (other than pursuant to the Revolving Credit Facility) in connection with such Permitted Acquisition shall not be greater than 4.0 times the Aggregate Consideration (exclusive of any such assumed or incurred Indebtedness) paid in respect of such Permitted Acquisition;
(G) if (i) any Subsidiary created or acquired in connection with such Permitted Acquisition shall constitute an Unrestricted Subsidiary and (ii) any portion of the Aggregate Consideration for such Permitted Acquisition is funded using the proceeds of Revolving Credit Loans or Swing Line Loans (other than Revolving Credit Loans or Swing Line Loans drawn using Availability created by repayments of Revolving Credit Loans and Swing Line Loans using proceeds of Cumulative Excess Cash Flow that is Not Otherwise Applied), the principal balance of the Revolving Credit Loans and Swing Line Loans so applied shall not, in the aggregate, exceed the sum of (x) the portion of such Aggregate Consideration funded using Cumulative Excess Cash Flow that is Not Otherwise Applied and (y) the portion of such Aggregate Consideration funded using Net Cash Proceeds of Permitted Equity Issuances (other than Permitted Equity Issuances made pursuant to Section 8.05); provided, that any such Permitted Equity Issuances shall be funded to Holdco, by Holdco to the Borrower and by the Borrower to the applicable Unrestricted Subsidiary;
(H) (1) immediately before and immediately after giving Pro Forma Effect to any such purchase or other acquisition, no Default shall have occurred and be continuing and (2) immediately after giving effect to such purchase or other acquisition (including any capital contributionsIndebtedness incurred in connection therewith), (i) made the Borrower and the Restricted Subsidiaries shall be in Pro Forma Compliance with all of the covenants set forth in Section 7.11 and (ii) the Total Leverage Ratio (as determined on a Pro Forma Basis after giving effect to such purchase or other acquisition) shall be less than or equal to the Closing DateTotal Leverage Ratio (as determined immediately prior to such purchase or acquisition), with such compliance with preceding clauses (i) and (ii) to be determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or (b) as though (where applicable) such purchase or other acquisition had been consummated as of the first day of the fiscal period covered thereby and evidenced by a certificate from the principal accounting officer of the Borrower demonstrating such compliance calculation in reasonable detail;
(I) the Borrower shall have delivered to the Administrative Agent, on behalf of the Lenders, no later than five (5) Business Days prior to the date on which any such purchase or other acquisition is consummated, a certificate of a Responsible Officer, in form and substance reasonably satisfactory to the Administrative Agent, certifying that all of the requirements set forth in this clause (i) have been satisfied or will be satisfied on or prior to the consummation of such purchase or other acquisition; and
(J) after giving effect to such purchase or acquisition and any incurrence of Indebtedness in connection therewith, Liquidity shall not be less than $40,000,000;
(j) the Restructuring Transactions (including, without limitation, the OpCo Acquisition);
(ck) investments by Investments in the Parent, ordinary course of business consisting of Article 3 of the Obligor Uniform Commercial Code endorsements for collection or deposit and Article 4 of the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries Uniform Commercial Code customary trade arrangements with customers consistent with past practices;
(l) Investments (including as capital contributions debt obligations and Equity Interests) 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 such Restricted Subsidiaries); provided that any secured Investment or other transfer of title with respect to any secured Investment;
(im) such Restricted Subsidiaries are Restricted Subsidiaries loans and advances to the Holding Companies (or any direct or indirect parent thereof) in lieu of, and not in excess of the Parent prior amount of (after giving effect to such investmentsany other loans, (ii) any such Equity Interests held by a Loan Party shall be pledged advances or Restricted Payments in respect thereof), Restricted Payments to the extent required by permitted to be made to the definition of the term “Collateral and Guarantee Requirement” Holding Companies (or such parent) in accordance with Section 7.06(f) and (iiig);
(n) so long as immediately after giving effect to any such Investment, no Default has occurred and is continuing and the Borrower and the Restricted Subsidiaries will be in Pro Forma Compliance with the covenants set forth in Section 7.11, Investments in an aggregate amount from and after the Closing Date not to exceed the sum of (A) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties Net Cash Proceeds of Indebtedness and Permitted Equity Issuances (other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered than Permitted Equity Issuances made pursuant to Section 5.04(a8.05) or 5.04(b) prior to received after the date of such Investment;
Closing Date that are Not Otherwise Applied, plus (d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (iiB) the amount of such loans and advances made by the Loan Parties Cumulative Excess Cash Flow that is Not Otherwise Applied plus (C) an amount equal to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above$50,000,000;
(eo) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary advances of Indebtedness or other obligations payroll payments to employees of the Parent, Borrower and the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(ip) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business[reserved];
(jq) Investments held by any of a Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any of a Person merged into the Borrower or merged or consolidated with any Group Member a Restricted Subsidiary in accordance with Section 7.04 after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(kr) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04[reserved];
(ls) Investments consisting of in LandCo Holdings and LandCo (including, without limitation, (i) extensions of trade credit, pursuant to the LandCo Support Agreement or (ii) deposits made in connection with the purchase of goods or services or the performance of leasesto be applied by LandCo Holdings to pay corporate overhead expenses, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties franchise taxes and other extensions of credit tofees, customers taxes and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of businessexpenses required to maintain its limited liability company existence);
(mt) other Investments and other acquisitions; provided thatin OpCo Holdings made using the proceeds of any capital contribution to, at the time each such Investment or acquisition is purchased, made any sale or otherwise acquiredissuance of its Equity Interests by, the aggregate Borrower or Holdco, in an amount of such Investment or the aggregate amount of all consideration paid not in connection with such acquisition (determined as set forth in clause (g) excess of the definition of “Permitted Acquisition”Applicable Clawback Amount with respect thereto;
(u) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus GVR Acquisition and (ii) [* * *] or
(v) Investments in Unrestricted Subsidiaries made using the sum proceeds of Cure Note Indebtedness to the extent applied to cure or prevent a Specified Event (Aas defined in the Equityholders Agreement); provided, that any Investment (or series of related Investments) in one or more entities that are not Restricted Subsidiaries in excess of $1,000,000 (including, for the aggregate amount avoidance of doubt, any Investment resulting from the designation of a Restricted Subsidiary as an Unrestricted Subsidiary but excluding Investments made pursuant to Section 7.02(s) through (v)) shall not be permitted pursuant to this clause (m) subsequent to Section 7.02, unless the Closing Date as Borrower has provided the Administrative Agent with a certificate of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided Borrower certifying that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect any cash used to any make such Investment (or acquisitionseries of related Investments, in which case the Total Adjusted Net Leverage Ratio Borrower will provide such certificate only upon the first Investment in such series) shall not exceed be used for a current Bona Fide Business Purpose other than “cash hoarding” (as determined by the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (Administrative Agent in each case, as certified by a Responsible Officer of the Obligorits reasonable discretion).
Appears in 1 contract
Investments. None The Borrower shall not, and shall not permit any of the Parentits Subsidiaries to, the Obligor directly or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, indirectly make or otherwise suffer to exist maintain any Investment in any other Person, or make any Acquisition, other thanexcept for the following:
(a) Permitted Investments existing on the Effective Date and disclosed on Schedule 8.3 (Existing Investments);
(b) Investments existing on the Closing Date in Subsidiaries, cash and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date)Cash Equivalents;
(c) investments by Investments in accounts, contract rights and chattel paper (each as defined in the ParentUCC), notes receivable and similar items arising or acquired from the Obligor and sale of Inventory in the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries ordinary course of business consistent with the past practice of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral Borrower and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investmentits Subsidiaries;
(d) loans or advances made by Investments received in settlement of amounts due to the Parent, the Obligor Borrower or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made Borrower effected in the ordinary course of business;
(e) Investments by (i) the Borrower in any Subsidiary Guarantor or by any Subsidiary Guarantor in the Borrower or any other Subsidiary Guarantor, (ii) a Subsidiary of the Borrower that is not a Subsidiary Guarantor in the Borrower or any other Subsidiary of the Borrower or (iii) the Borrower or any Subsidiary Guarantor in a Subsidiary that is neither a Subsidiary Guarantor nor a Permitted Joint Venture; provided, however, that the aggregate outstanding amount of all such Investments received in connection with pursuant to this clause (iii) shall not exceed $75,000,000 at any time;
(f) loans or advances to employees of the bankruptcy Borrower or reorganization of, or settlement any of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case its Subsidiaries in the ordinary course of business; provided, however, that (i) the aggregate principal amount of all such loans and advances shall not exceed $2,500,000 at any time and (ii) the proceeds of such loans or advances are used solely to reimburse such employee for relocation expenses actually incurred;
(g) Investments constituting Guaranty Obligations permitted by Section 8.1 (Indebtedness);
(h) direct or indirect ordinary course of business Investments in Permitted Joint Ventures engaged in an Eligible Line of Business;
(i) Investments in connection with a Permitted Acquisition;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07not otherwise permitted hereby; provided, in each casehowever, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate outstanding amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) Investments shall not exceed an amount equal to (i) the Available Equity Amount $20,000,000 at such any time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor).
Appears in 1 contract
Samples: Amendment Agreement (Washington Group International Inc)
Investments. None Make any advance, loan, extension of the Parentcredit (by way of guaranty or otherwise) or capital contribution to, the Obligor or purchase any Equity Interests, bonds, notes, debentures or other debt securities of, or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not assets constituting a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Personsignificant part of a business unit of, or make any Acquisitionother investment in, other thanany Person (all of the foregoing, "Investments"), except:
(a) Permitted Investments;
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries extensions of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of trade credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(ib) Investments received investments in connection with Cash Equivalents;
(c) Guarantee Obligations permitted by Section 7.2;
(d) loans and advances to employees of the bankruptcy Borrower or reorganization of, or settlement any of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case its Subsidiaries in the ordinary course of businessbusiness (including for travel, entertainment and relocation expenses) in an aggregate amount not to exceed $5,000,000 at any one time outstanding;
(je) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;(including capital expenditures)
(ki) Investments made by the Borrower or any of its Subsidiaries in (x) the Borrower or any Subsidiary that, prior to such Investment, is a Wholly Owned Subsidiary Guarantor, or (y) any then existing Subsidiary that is not a Subsidiary Guarantor if, as a result of such Investment, such Subsidiary becomes a Wholly Owned Subsidiary Guarantor concurrently therewith; (ii) by any Subsidiary of the receipt Borrower that is not a Subsidiary Guarantor in any other Subsidiary of noncash consideration from the Borrower that is not a Subsidiary Guarantor and that (unless such Investment is made after the Additional Credit Support Compliance Date) is not a Silo Entity; (iii) by any Disposition Silo Borrower or any of its Subsidiaries in (x) such Silo Borrower or any asset Subsidiary of such Silo Borrower that, prior to such Investment, is a Wholly Owned Silo Loan Party, or (y) any then existing Subsidiary of such Silo Borrower that is not a Wholly Owned Silo Loan Party if, as a result of such Investment, such Subsidiary becomes a Wholly Owned Silo Loan Party; and (iv) by any Subsidiary of a Silo Borrower that is not a Silo Credit Entity in compliance with Section 6.04any other Subsidiary of such Silo Borrower that is not a Silo Credit Entity;
(lf) Investments consisting acquisitions by the Borrower, any Wholly Owned Subsidiary Guarantor or any Wholly Owned Silo Loan Party of operating assets (substantially all of which pertain to a Permitted Line of Business), directly through an asset acquisition or indirectly through the acquisition of 100% of the Equity Interests of a Person substantially engaged in a Permitted Line of Business, provided, that (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (Bii) at the no time each such Investment or acquisition is purchased, made or otherwise acquired, shall the aggregate amount of Consideration paid during the period from the Restatement Effective Date through such Investment or the aggregate amount of all consideration paid time in connection with any such acquisition (determined as set forth in clause acquisitions of Equity Interests of Persons who, together with their Subsidiaries, are not Wholly Owned Subsidiary Guarantors at such time, exceed $750,000,000;
(g) the Borrower or any of the definition of “Permitted Acquisition”its Subsidiaries may contribute operating assets to any Non-Recourse Subsidiary so long as (i) shall not exceed the Available Amount at such time Disposition is permitted pursuant to Section 7.5(f), (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (Aii) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom, (iii) after giving effect thereto, the Consolidated Leverage Ratio shall be equal to or lower than the Consolidated Leverage Ratio in effect immediately prior thereto and (iv) the Equity Interests received by the Borrower or any of its Subsidiaries in connection therewith shall be pledged as Collateral (either directly or through a holding company parent of such Non-Recourse Subsidiary so long as such parent is a Wholly Owned Subsidiary Guarantor); and
(h) in addition to Investments otherwise expressly permitted by this Section, Investments by the Borrower or any of its Subsidiaries in an aggregate amount outstanding at any time (initially valued at cost and giving effect to all payments received in respect thereof whether constituting dividends, prepayment, interest, return on capital or principal or otherwise unless such payments are from a Non-Recourse Subsidiary and applied to make a Restricted Payment under Section 7.6(i) or an Investment under Section 7.7 (l) or 7.7(m)), not to exceed the sum of $300,000,000 plus the aggregate amount of cash and assets (valued at fair market value) contributed by any Designated Holding Company to the Borrower after the Restatement Effective Date in the form of common equity; provided, that (i) no such Investment may be made at any time when Default or Event of Default has occurred and is continuing or would result therefrom and (Bii) none of the proceeds of such Investment may be used directly or indirectly to repay, repurchase, redeem or otherwise acquire or retire for value Indebtedness of any Qualified Parent Company or otherwise in a manner that would be prohibited by Section 7.6 if the Borrower or any Subsidiary (directly or indirectly) used such proceeds in such manner;
(i) any Excluded Acquired Subsidiary may make investments in any other Excluded Acquired Subsidiary;
(j) loans made by the Borrower pursuant to any Silo Credit Agreement and evidenced by a promissory note that has been pledged as Collateral under the CCO Guarantee and Collateral Agreement;
(k) in respect of any calendar year or portion thereof during which the Borrower or any of its Subsidiaries is a Flow-Through Entity, so long as no Default or Event of Default has occurred and is continuing or would result therefrom, and without duplication of Section 7.6(d), the Borrower and its Subsidiaries may make a loan or advance (directly or indirectly) to the direct or indirect holders of the Equity Interests of the Borrower or its Subsidiaries that are not Flow-Through Entities, in an amount sufficient to permit each such holder to pay the actual income taxes (including required estimated tax installments) that are required to be paid by it with respect to the taxable income of the Qualified Parent Companies, the Borrower or its Subsidiaries, as applicable, in any calendar year, as estimated by the Borrower in good faith;
(l) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, the Borrower and its Subsidiaries may make Investments in any Non-Recourse Subsidiary with the proceeds of distributions from any Non-Recourse Subsidiary concurrently with the receipt of such proceeds; and
(m) the Borrower and its Subsidiaries may contribute operating assets to a Wholly Owned Subsidiary, provided that (i) no Default or Event of Default has occurred and is continuing or would result therefrom, (ii) a binding Contractual Obligation with a counterparty other than a member of the Charter Group to Dispose of such assets or Wholly Owned Subsidiary is in effect at the time of such contribution, (iii) such Disposition is consummated in accordance with Section 7.5(f) within five Business Days of such contribution or, if such Disposition is not so consummated, then within eight Business Days of such contribution such contribution is reversed or such Wholly Owned Subsidiary complies with Section 6.9 and immediately after giving effect to any (iv) such Investment or acquisition, the Total Adjusted Net Leverage Ratio Wholly Owned Subsidiary shall not make any Investments with such assets or the proceeds thereof, including pursuant to Section 7.7(e)(ii) or (iv). Notwithstanding anything to the contrary in this Agreement, in no event shall the sum of (i) the aggregate amount of letters of credit and surety arrangements (including unreimbursed reimbursement obligations in respect thereof) and security deposits posted by the Borrower or any of its Subsidiaries in connection with potential Investments (including pursuant to letters of intent) and (ii) the aggregate outstanding amount of L/C Obligations, exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)$350,000,000 at any one time.
Appears in 1 contract
Investments. None of the ParentMake any Investments, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Permitted InvestmentsInvestments held by the Parent Guarantor, the Borrower or any Restricted Subsidiary in the form of cash and Cash Equivalents;
(b) advances to officers, directors, employees and consultants of the Parent Guarantor, the Borrower and Restricted Subsidiaries (i) in an aggregate amount not to exceed $2,500,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes; and (ii) in connection with such Person’s purchase of Equity Interests of the Parent Guarantor, provided that, no cash is actually advanced pursuant to this clause (ii) unless immediately repaid; provided further, that notwithstanding the foregoing, no Investments existing on may be made pursuant to this clause (b) during the Closing Date Covenant Relief Period in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date)excess of $500,000;
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that Investments (i) existing or contractually committed on the Funding Date in Subsidiaries existing on the Funding Date; provided that, in the case of this clause (i), any such Investments in Restricted Subsidiaries that are not Loan Parties in the form of intercompany loans by Loan Parties shall be evidenced by notes that have been pledged (individually or pursuant to a global note) to the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent for the benefit of the Secured Parties unless such pledge would, in the good faith judgment of the Borrower in consultation with the Administrative Agent, result in adverse tax consequences to the Parent Guarantor, the Borrower and the Restricted Subsidiaries of as reasonably determined by Borrower in consultation with the Parent prior to such investments, Administrative Agent; (ii) in Loan Parties (including those formed or acquired after the Funding Date so long as the Parent Guarantor, the Borrower and the Restricted Subsidiaries comply with the applicable provisions of Section 5.11, provided that, notwithstanding anything to the contrary in this Agreement or any other Loan Document, the Lien of the Administrative Agent for the benefit of the Secured Parties shall not attach to any such Equity Interests held by Investment in the form of an intercompany loan and any intercompany note evidencing such loan shall not be required to be delivered to the Administrative Agent if any such note is subsequently reasonably promptly contributed to a Subsidiary that is not a Loan Party shall be pledged pursuant to the extent required Section 6.02(c)(iv)); (iii) by Restricted Subsidiaries that are not Loan Parties in Restricted Subsidiaries that are not Loan Parties; (iv) by the definition Borrower or any other Loan Party in Unrestricted Subsidiaries or in Restricted Subsidiaries that are not Loan Parties; provided that, in the case of this clause (iv), (A) no Event of Default shall have occurred and be continuing, (B) the term “Collateral Parent Guarantor, the Borrower and Guarantee Requirement” and the Restricted Subsidiaries comply with the applicable provisions of Section 5.11, (iiiC) the aggregate amount of all such investments Investments outstanding at any time (determined without regard to any write‑downs or write‑offs of such Investments) shall not exceed the sum of (1) the greater (x) of $6,000,00010,000,000 and (y) 15% of Consolidated EBITDA of the Parent Guarantor, the Borrower and the Restricted Subsidiaries based on the most recent financial statements delivered under Section 5.01(a) or (b) or, prior to the time any such statements are first required to be so delivered pursuant to Section 5.01(a) or (b), the financial statements delivered pursuant to (1) prior to the Funding Date, Section 4.01(d)(i) and (2) on and after the Funding Date, Section 4.01(d)(i) and (ii) plus (2) an amount not to exceed the Available Amount at the time of the making of such Investment, plus (3) any Net Equity Proceeds; provided further that, this clause (C) shall not apply to any such Investment that is in the form of an equity contribution or intercompany loan if, reasonably promptly following receipt of such equity contribution or intercompany loan, the proceeds of such equity contribution or intercompany loan shall be used by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, such Restricted Subsidiaries that are not Loan Parties (excluding all or Subsidiaries thereof) to consummate a Permitted Acquisition (and any such investments, loans, advances and Guarantees existing on Investment described in this proviso shall not utilize the date hereof and permitted by basket set forth in this clause (bC), but shall, if applicable, utilize the basket set forth in the definition of Permitted Acquisition) aboveand (D) any such Investments in the form of intercompany loans shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater be evidenced by notes that have been pledged (individually or pursuant to a global note) to the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent for the benefit of the Secured Parties unless (x) $20,000,000 such pledge would result in adverse tax consequences to the Parent Guarantor, the Borrower and the Restricted Subsidiaries as reasonably determined by Borrower in consultation with the Administrative Agent or (y) 15% reasonably promptly following the making of IKE-Adjusted EBITDA such intercompany loan the holder of such note representing such loan contributes such note as an equity contribution to any Restricted Subsidiary that is not a Loan Party that will reasonably promptly following receipt of such equity contribution consummate (or cause one or more of its Restricted Subsidiaries to consummate) a Permitted Acquisition, in which case and in each such case, notwithstanding anything to the contrary in this Agreement or any other Loan Document, the Lien of the last day Administrative Agent for the benefit of the most recently ended four consecutive Fiscal Quarters for which financial statements have been Secured Parties shall not attach to any such note, and any such note shall not be required to be delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such InvestmentAdministrative Agent;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) Investments consisting of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter extensions of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form nature of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees accounts receivable or notes receivable arising from the grant of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(i) Any Investments by the Borrower or any Guarantor in the form of Permitted Acquisitions and (ii) any Permitted Acquisition by any Restricted Subsidiary that is not a Loan Party (or any Restricted Subsidiary thereof) funded from, reasonably promptly following receipt thereof, the cash proceeds received by such Restricted Subsidiary (or any parent entity(ies) thereof that is also a Restricted Subsidiary and that received such proceeds in accordance with Section 6.02(c)(iv)) from any equity contribution or intercompany loan permitted under Section 6.02(c)(iv);
(f) Guarantees permitted by Section 6.03 or of obligations that do not constitute Indebtedness in the ordinary course of business or consistent with past practice;
(g) to the extent constituting Investments, transactions expressly permitted under Sections 6.01 (other than Section 6.01(u)), 6.04 (other than Section 6.04(c)), 6.06(d) and 6.14);
(h) Investments existing on, or made pursuant to legally binding written commitments in existence on, the Funding Date and, to the extent having an aggregate value greater than $500,000, set forth on Schedule 6.02, and any modification, replacement, renewal or extension thereof; provided that, the amount of the original Investment is not increased except by the terms of such Investment or as otherwise permitted by this Section 6.02;
(i) promissory notes and other non‑cash consideration received in connection with Dispositions permitted by Section 6.05;
(j) Investments (including debt obligations and Equity Interests) received in connection with the bankruptcy or reorganization of, or of suppliers and customers and in settlement of delinquent accounts obligations of, and other disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case suppliers arising in the ordinary course of businessbusiness and upon the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(jk) Investments to the extent that payment for such Investments is made solely by the issuance of Qualified Equity Interests of the Parent Guarantor to the seller of such Investments;
(l) Restricted Subsidiaries may be established or created if the Parent Guarantor, the Borrower and such Restricted Subsidiary comply with the requirements of Section 5.11, if applicable; provided that, in each case, to the extent such new Restricted Subsidiary is created solely for the purpose of consummating a transaction pursuant to an acquisition permitted by this Section 6.02, and such new Restricted Subsidiary at no time holds any assets or liabilities other than any merger or acquisition consideration contributed to it contemporaneously with the closing of such transactions, such new Restricted Subsidiary shall not be required to take the actions set forth in Section 5.11, as applicable, until the applicable acquisition is consummated (at which time the surviving entity of the applicable transaction shall be required to so comply in accordance with the provisions thereof);
(i) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 Funding Date, or held by of any Person acquired by, or merged into or consolidated or amalgamated with the Parent Guarantor, the Borrower or any Group Member Restricted Subsidiary after the Closing Date in compliance with Section 6.06 and this Section 6.07Funding Date, in each case, so long as part of an Investment otherwise permitted by this Section 6.02 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger merger, amalgamation or consolidation and were in existence on the date of such the relevant acquisition, merger merger, amalgamation or consolidationconsolidation and (ii) any modification, replacement, renewal or extension of any Investment permitted under clause (i) of this Section 6.02(m) so long as no such modification, replacement, renewal or extension thereof increases the amount of such Investment except as otherwise permitted by this Section 6.02; provided that, notwithstanding the foregoing, no Investments may be made pursuant to this clause (m) during the Covenant Relief Period that is not in connection with a Permitted Acquisition;
(kn) Investments made as a result of Swap Contracts to the receipt of noncash consideration from any Disposition of any asset in compliance with extent permitted pursuant to Section 6.046.03(d);
(lo) so long as no Event of Default has occurred and is continuing or would be caused thereby, other Investments; provided that, in no event shall the aggregate amount of Investments outstanding at any time pursuant to this Section 6.02(o) during the term of this Agreement (net of any returns of capital on such Investments) exceed the sum of (1) the greater of (x) $10,000,000 and (y) 25% of Consolidated EBITDA of the Parent Guarantor, the Borrower and the Restricted Subsidiaries based on the most recent financial statements delivered under Section 5.01(a) or (b) or, prior to the time any such statements are first required to be so delivered pursuant to Section 5.01(a) or (b), the financial statements delivered pursuant to (1) prior to the Funding Date, Section 4.01(d)(i) and (2) on and after the Funding Date, Section 4.01(d)(i) and (ii) plus (2) an amount not to exceed the Available Amount at the time of the making of such Investment plus (3) any Net Equity Proceeds; provided further, that notwithstanding the foregoing, no Investments may be made pursuant to this clause (o) during the Covenant Relief Period in excess of $1,000,000;
(p) the Funding Date Acquisitions;
(q) Investments consisting of (i) extensions the non-exclusive licensing or sublicensing of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made IP Rights in the ordinary course of business;
(mr) Investments consisting of the non-exclusive licensing or contribution of IP Rights pursuant to joint marketing arrangements with other Persons; and;
(s) unlimited Investments shall be permitted so long as (i) no Event of Default shall exist before or after giving effect to such Investment and other acquisitions(ii) the pro forma Total Leverage Ratio would be less than 3.00:1.00.; provided that, at notwithstanding the time each such Investment or acquisition is purchasedforegoing, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of no Investments may be made pursuant to this clause (ms) subsequent to during the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor)Covenant Relief Period; and
(ot) other Investments and other acquisitions; provided that (A) no Specified Default or Event made prior to the Second Amendment Effective Date in connection with the indirect acquisition of Default shall have occurred and be continuing or would result therefrom and (B) at equity interests in Obagi Viet Nam Import Export Trading MTV Company Limited, a company incorporated in accordance with the time laws of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)Vietnam.
Appears in 1 contract
Samples: Credit Agreement (Waldencast PLC)
Investments. None No Credit Party shall, nor shall it permit any of the Parentits Subsidiaries to, the Obligor directly or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdindirectly, make or otherwise suffer to exist own any Investment in any other Person, or make including without limitation any AcquisitionJoint Venture, other thanexcept:
(a) Permitted InvestmentsInvestments in Cash and Cash Equivalents;
(b) equity Investments owned as of the Closing Date in any Subsidiary and other Investments made after the Closing Date in any Borrower and any Core Credit Party (other than Holdings);
(c) Investments (i) in any Securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors and (ii) deposits, prepayments and other credits to suppliers made in the ordinary course of business consistent with the past practices of Holdings and its Subsidiaries;
(d) Consolidated Capital Expenditures with respect to Borrowers and the Guarantors permitted by Section 6.8(e);
(e) loans and advances to employees of Holdings and its Subsidiaries made in the ordinary course of business in an aggregate principal amount not to exceed $50,000 in the aggregate in any Fiscal Year;
(f) Investments by Credit Parties in Subsidiaries of Holdings which are not Guarantors and Joint Ventures at any time in an aggregate outstanding amount not to exceed $300,000;
(g) Investments existing on the Closing Date described in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions6.7;
(h) Any payrollobligations of Account Debtors to any Credit Party arising from accounts which are past due evidenced by a promissory note made by such account debtor payable to such Credit Party; provided, travelthat, entertainment, relocation and similar advances to directors, officers and employees promptly upon the receipt of the original of any Group Member that are expected at such promissory note by such Credit Party, such promissory note shall be endorsed to the time order of Collateral Agent, or (if required by the Intercreditor Agreement) the Revolving Collateral Agent, by such advances Credit Party and promptly delivered to be treated Collateral Agent, or (if required by the Intercreditor Agreement) the Revolving Collateral Agent, as expenses of such Group Member for accounting purposes and that are made in the ordinary course of businessso endorsed;
(i) Investments received by Subsidiaries that are not (and are not required within the applicable grace period under this Agreement to become) Credit Parties in connection with other Subsidiaries that are not (and are not required within the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing applicable grace period under this Agreement to any Group Member, in each case in the ordinary course of business;become) Credit Parties; and
(j) Investments held to the extent required to purchase the minority Capital Stock of Islandaire pursuant to that certain Stock Purchase Agreement dated as of March 2, 2005, by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07among FNA, in each caseIslandaire, so long Island Metal and Xxxxxx X. Xxxxxx, Xx., as such Investments were not made in contemplation sole stockholder of or in connection with such acquisitionIslandaire, merger or consolidation and were as in existence on the date of Closing Date with such acquisitionsubsequent amendments, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of waivers and other modifications satisfactory to Administrative Agent; provided, that (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have has occurred and be is continuing or would result therefrom and therefrom, (Bii) at Holdings is in pro forma compliance with the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as financial covenants set forth in Section 6.8 taking into account all Investments described in this clause (gj) and (iii) such Investments to the extent made with Cash or other property (other than Capital Stock of the definition of “Permitted Acquisition”Holdings) in Islandaire shall not exceed $3,000,000 in the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments aggregate and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed be paid prior to March 2, 2008. Notwithstanding the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (foregoing, in each case, as certified by a Responsible Officer no event shall any Credit Party make any Investment which results in or facilitates in any manner any Restricted Junior payment not otherwise permitted under the terms of the Obligor)Section 6.5.
Appears in 1 contract
Samples: Revolving Loan and Guaranty Agreement (Fedders Corp /De)
Investments. None of the ParentMake any Investments, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Permitted InvestmentsInvestments held by the Borrower and its Restricted Subsidiaries in the form of Eligible Securities;
(b) Investments existing on advances to officers, directors and employees of the Closing Date in Subsidiaries, Borrower and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other its Restricted Subsidiaries or to physicians with whom the Borrower or any of its Subsidiaries have contractual relationships in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the an aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, to exceed $15,000,000 10,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters outstanding, for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the analogous ordinary course of businessbusiness purposes;
(i) Investments received by the Borrower and its Restricted Subsidiaries in connection with their respective Restricted Subsidiaries outstanding on the bankruptcy or reorganization ofdate hereof, or settlement (ii) additional Investments by the Borrower and its Restricted Subsidiaries in Loan Parties, (iii) additional Investments by Restricted Subsidiaries of delinquent accounts the Borrower that are not Loan Parties in other Restricted Subsidiaries (other than any Receivables Entity) that are not Loan Parties and disputes with(iv) so long as no Default has occurred and is continuing at the time any such Investment is made, customers and suppliers, or additional Investments by the Loan Parties in connection with Restricted Subsidiaries (other than any Receivables Entity) that are not Loan Parties in an aggregate amount invested from the satisfaction or enforcement of claims due or owing date hereof not to any Group Member, in each case in the ordinary course of businessexceed $50,000,000;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(ld) Investments consisting of (i) extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss, and Investments arising out of the receipt by the Borrower or any Restricted Subsidiary of noncash consideration for the sale of assets permitted under Section 7.05(g) or (iiin);
(e) notes receivable Investments existing on the date hereof (other than those referred to in Section 7.03(c)(i)) and set forth on Schedule 7.03(e);
(f) Investments by the Borrower in Swap Contracts permitted under Section 7.02(a);
(g) the purchase or other acquisition of all of the Equity Interests in, or all or substantially all of the property of, or prepaid royalties and other extensions a line of credit tobusiness of, customers and suppliers that are not Affiliates any Person that, upon the consummation thereof, will be a wholly-owned Restricted Subsidiary owned directly by the Borrower or one or more of any Group Member and that are made in the ordinary course its wholly-owned Restricted Subsidiaries (including as a result of business;
(m) other Investments and other acquisitionsa merger or consolidation); provided that, at the time with respect to each such Investment purchase or other acquisition is purchasedmade pursuant to this Section 7.03(g) (each, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of a “Permitted Acquisition”) shall not exceed an amount equal to ):
(i) any such newly created or acquired Restricted Subsidiary shall comply with the Available Equity Amount at such time, minus requirements of Section 6.13;
(ii) the sum lines of business of the Person to be (or the property of which is to be) so purchased or otherwise acquired shall be substantially the same lines of business as one or more of the principal businesses of the Borrower and its Restricted Subsidiaries in the ordinary course;
(iii) (A) the aggregate amount of Investments made pursuant immediately before and immediately after giving pro forma effect to this clause (m) subsequent to the Closing Date as of any such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) purchase or other Investments and other acquisitions; provided that (A) acquisition, no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at immediately after giving effect to such purchase or other acquisition, the time each Borrower and its Subsidiaries shall be in pro forma compliance with all of the covenants set forth in Section 7.11, such Investment compliance to be determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or (b) as though such purchase or other acquisition had been consummated as of the first day of the fiscal period covered thereby;
(iv) if the Cost of Acquisition is purchased, made in excess of $150,000,000 or otherwise acquiredif after giving effect to such Permitted Acquisition, the aggregate amount Costs of Acquisition incurred in any Fiscal Year (on a non-cumulative basis, with the effect that amounts not incurred in any Fiscal Year may not be carried forward to a subsequent period and determined by the date of incurrence of any Cost of Acquisition and not by the date of the effectiveness of such Investment or acquisition) shall exceed $250,000,000, the aggregate amount of all consideration paid in connection with such acquisition (determined Borrower shall have furnished to the Administrative Agent a Compliance Certificate prepared on a historical Pro Forma Basis as set forth in clause (g) of the definition of “most recent date for which financial statements have been furnished pursuant to this Agreement giving effect to such Permitted Acquisition”, which certificate shall demonstrate that (i) shall not exceed no Default would exist immediately after giving effect thereto and (ii) the Available Amount at such time (Borrower is in each case, as certified by a Responsible Officer of the Obligor)Pro Forma Compliance with Section 7.11; and
(ov) other such acquisition is consensual and approved by the target’s board of directors (or equivalent) and/or shareholders (or equivalent), as applicable;
(h) Investments by the Borrower and other acquisitionsthe Restricted Subsidiaries (i) resulting from the designation of a Restricted Subsidiary as a Joint Venture Subsidiary; or (ii) existing as of the Closing Date in any Restricted Subsidiary that is designated as a Joint Venture Subsidiary on the Closing Date; provided that in the case of clause (i) and (ii), (A) after giving Pro Forma Effect to such Investments or designation as a Joint Venture Subsidiary, (i) no Specified Default or Event of Default shall have occurred and be continuing and (ii) on a Pro Forma Basis the Borrower and its Restricted Subsidiaries shall be in compliance with all of the covenants set forth in Section 7.11, such compliance to be determined on the basis of the financial information most recently delivered to the Administrative Agent and the Lenders pursuant to Section 6.01(a) or would result therefrom (b) as though such Investment and designation had been consummated as of the first day of the fiscal period covered thereby; and (B) on a Pro Forma Basis after giving effect to such Investment, designation as a Joint Venture Subsidiary and release of Guaranty, the Guarantor EBITDA Test and the Mortgage EBITDA Test shall be satisfied (and the Borrower shall have provided an officers’ certificate to the Administrative Agent demonstrating in reasonable detail compliance with the foregoing).
(i) so long as no Default has occurred and is continuing at the time any such Investment is made, other Investments not exceeding $25,000,000 in the aggregate in any fiscal year of and the Borrower;
(j) so long as immediately after giving effect to any such Investment or acquisitionInvestment, no Default has occurred and is continuing, and the Total Adjusted Net Leverage Ratio shall Borrower and the Restricted Subsidiaries will be in Pro Forma Compliance with the covenants set forth in Section 7.11, other Investments in an amount not to exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis sum of (in each case, as certified by a Responsible Officer x) the Cumulative Growth Amount immediately prior to the time of the Obligormaking of any Investment plus (y) amounts not utilized under Section 7.06(d) that Borrower elects to utilize as an Investment under this Section 7.03(j)(y);
(k) Investments to the extent financed by the Equity Interests (other than Disqualified Stock) of the Borrower;
(l) Investments in Captive Insurers required to meet regulatory requirements and fund reserves for anticipated insurance losses as determined by third party actuaries (and any Investment made by such Captive Insurers that is a legal investment for an insurance company under the laws of the jurisdiction in which such Captive Insurer is formed and made in the ordinary course of business and rated in one of the four highest rating categories);
(m) Physician Support Obligations in an aggregate amount not to exceed $20,000,000 at any time outstanding; and
(n) Investments arising as a result of Qualified Receivables Transactions permitted under Section 7.02(p).
Appears in 1 contract
Samples: Credit Agreement (Health Management Associates Inc)
Investments. None No Credit Party shall, and no Credit Party shall permit any of the Parent, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdits Subsidiaries to, make or otherwise suffer permit to exist any Investment in any other Person, or make any Acquisition, other thanexcept the following:
(a) Permitted Cash Equivalent Investments, to the extent the Agent has a first priority security interest therein;
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) bank deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in to the ordinary course of businessextent the Agent has a first priority security interest therein;
(mc) other Investments and other acquisitions; provided that, at in securities of account debtors received pursuant to any plan of reorganization or similar arrangement upon the time each such Investment bankruptcy or acquisition is purchased, made or otherwise acquired, the aggregate amount insolvency of such Investment or account debtors;
(d) Investments owned by the aggregate amount of all consideration paid in connection with such acquisition (determined Credit Parties and their Subsidiaries on the Fifth Restatement Closing Date as set forth on Schedule 8.25;
(i) Domestic Credit Parties may maintain Investments in Foreign Subsidiaries in amounts not to exceed the outstanding amounts of such Investments as of the Fifth Restatement Closing Date plus additional Investments in Foreign Subsidiaries after the Fifth Restatement Closing Date to the extent expressly approved by Agent in advance in writing; provided, if the Investments described in the foregoing clause (i) are evidenced by notes, such notes shall be pledged to Agent, for the benefit of the Lenders, and have such terms as Agent may reasonably require; and (ii) Foreign Subsidiaries may make Investments in other Foreign Subsidiaries;
(f) Investments constituting cash equity contributions by Elevate Credit in the other Borrowers, including, without limitation, cash equity contributions made in order to satisfy the LTV Covenant Cure Obligation, and Investments by Elevate Credit in its other Subsidiaries that are Credit Parties;
(g) nvestments made by the Credit Parties (other than Elevate Credit and Elevate Credit Parent) constituting Consumer Loans to residents of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) United States and the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such timeUnited Kingdom;
(nh) other Investments and other acquisitions; provided that (A) no Specified Default or Event made by the Credit Parties constituting the acquisition of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) Consumer Loans to residents of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at United States or participation interests in such time (Consumer Loans, in each case, as certified by a Responsible Officer of pursuant to the Obligor)applicable Bank Transaction Documents; and
(oi) other Investments and other acquisitions; provided that (A) no Specified Default or Event made by Today Card constituting the acquisition of Default shall have occurred and be continuing or would result therefrom and (B) at participation interests in Credit Card Receivables pursuant to the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)CCB Participation Agreement.
Appears in 1 contract
Investments. None The Company shall not, and shall not permit any of its Restricted Subsidiaries to, and the ParentGuarantor shall not, the Obligor and shall not permit any of its Restricted Subsidiaries to, directly or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanindirectly:
(a1) Permitted Investments;make any Restricted Investment; or
(b2) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not allow any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness the Company or other obligations of the ParentGuarantor to become an Unrestricted Subsidiary, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.0758 unless, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;:
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A1) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined occur as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor)consequence thereof; and
(o2) other Investments the Company would, at the time of, and other acquisitionsafter giving effect to, such Restricted Investment or such designation of a Restricted Subsidiary as an Unrestricted Subsidiary, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Leverage Ratio test set forth in the first paragraph of Section 4.10. Any designation of a Subsidiary of the Company or the Guarantor as an Unrestricted Subsidiary shall be evidenced to the Trustee by filing with the Trustee a certified copy of the Board Resolution giving effect to such designation and an Officers' Certificate certifying that such designation complied with the preceding conditions and was permitted by this Section 4.08. If, at any time, any Unrestricted Subsidiary would fail to meet the requirements as an Unrestricted Subsidiary described in the definition of "Unrestricted Subsidiary," it shall thereafter cease to be an Unrestricted Subsidiary for purposes of this Indenture and any Indebtedness of such Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the Company or the Guarantor as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 4.10, the Company or the Guarantor, as the case may be, shall be in default. The Board of Directors of the Company and the Guarantor may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation shall be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company or the Guarantor, respectively, of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation shall only be permitted if (A1) such Indebtedness is permitted under the covenant described under Section 4.10 calculated on a pro forma basis as if such designation had occurred at the beginning of the Reference Period; and (2) no Specified Default or Event of Default shall have occurred and would be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any in existence following such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)designation.
Appears in 1 contract
Samples: Indenture (Charter Communications Holdings Capital Corp)
Investments. None Neither the Parent nor the Borrower shall, nor shall they permit any of the Parent, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdtheir respective Subsidiaries to, make or otherwise suffer to exist maintain, directly or indirectly, any Investment in any other Person, or make any Acquisition, other thanexcept for the following:
(a) Permitted InvestmentsInvestments existing on the date of this Agreement and disclosed on SCHEDULE 8.3 (EXISTING INVESTMENTS);
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto cash (including any capital contributionscash held in bank deposit accounts) made after and Cash Equivalents in the Closing Date)ordinary course of business; PROVIDED, HOWEVER, that the Dollar Equivalent of Investments of Foreign Non-Guarantors in Cash Equivalents in which Loan Parties would not be permitted to make Investments pursuant to this CLAUSE (b) shall not exceed $15,000,000;
(c) investments Investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the ParentParent in payment intangibles, the Obligor or any other Restricted Subsidiary chattel paper (including any such Guarantees arising each as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments defined in the form of Hedge Agreements permitted under Section 6.12;
(gUCC) Permitted Acquisitions;
(h) Any payrolland accounts, travelnotes receivable, entertainment, relocation prepaid accounts and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made items arising or acquired in the ordinary course of business;
(id) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, amounts due to Parent or in connection with the satisfaction or enforcement any of claims due or owing to any Group Member, in each case its Subsidiaries effected in the ordinary course of business;
(je) cash deposits permitted pursuant to CLAUSE (c) or (f) of the definition of Customary Permitted Liens or pursuant to CLAUSE SECTION 8.2(i)(i) or (l) to SECTION 8.2 (LIENS, ETC.);
(f) Investments held consisting of Securities of account debtors received by Parent or any Restricted Subsidiary of its Subsidiaries in any bankruptcy, insolvency or reorganization proceedings of such account debtors;
(g) (i) Investments consisting of Permitted Acquisitions and the Equity Interests in which are acquired Foreign IP Transfer; PROVIDED, HOWEVER, that, this CLAUSE (g) shall not permit Investments to be made after the Closing Date consummation of such Permitted Acquisition or such Foreign IP Transfer if such Investments are not otherwise permitted under this SECTION 8.3 and (ii) Investments consisting of mergers, liquidations and dissolutions permitted pursuant to CLAUSE (y) or (z) of SECTION 8.7 (RESTRICTION ON FUNDAMENTAL CHANGES; PERMITTED ACQUISITIONS);
(h) Investments by (i) the Parent, the Borrower or any Subsidiary Guarantor in compliance with this Section 6.07 the Borrower or held by any Person merged into Subsidiary Guarantor, (ii) any Subsidiary of the Parent that is a Non-Guarantor in any other Subsidiary of Parent or consolidated with (iii) the Borrower or any Group Member after Subsidiary Guarantor in any Subsidiary of the Closing Date in compliance with Section 6.06 and this Section 6.07Parent or any Permitted Joint Venture, in each casecase that is a Non-Guarantor; PROVIDED, so long as HOWEVER, that Investments (including any Guaranty Obligations permitted pursuant to SECTION 8.1(c)(ii) (INDEBTEDNESS) and loans permitted pursuant to SECTION 8.1(g)(iii) (INDEBTEDNESS) shall be permitted pursuant to this CLAUSE (iii) only to the extent that, after giving effect to such Investments were not Investment (and any Investment or Asset Sale to be made in contemplation of to any Non-Guarantor on or in connection with such acquisition, merger or consolidation and were in existence on prior to the date of such acquisitionInvestment), merger the Dollar Equivalent of the Non-Guarantor Investment Amount shall not exceed $15,000,000 at any time; 110 CREDIT AGREEMENT PRESTIGE BRANDS, INC.
(i) intercompany loans by the Borrower or consolidationany Subsidiary Guarantor to the Parent or the Ultimate Parent (i) evidenced by promissory notes subject to the Requisite Priority Liens and (ii) at the time of the incurrence thereof, a Restricted Payment in an amount equal to the aggregate principal amount of such intercompany loans (without taking into account any paid in kind interest or original issue discount) would be permitted to be made pursuant to any clause of SECTION 8.5(c) (RESTRICTED PAYMENTS);
(j) loans or advances to employees of the Parent or any of its Subsidiaries in the ordinary course of business as presently conducted other than any loans or advances that would be in violation of Section 402 of the Xxxxxxxx-Xxxxx Act; PROVIDED, HOWEVER, that the Dollar Equivalent of the aggregate principal amount of all loans and advances permitted pursuant to this CLAUSE (j) shall not exceed $1,000,000 at any time;
(k) Investments made as a result loans and advances to any existing director, officer or employee of Parent or any of its Subsidiaries (other than any loans or advances that would be in violation of Section 402 of the receipt Xxxxxxxx-Xxxxx Act) the proceeds of noncash consideration from any Disposition which shall be used for the sole purpose of acquisition by such director, officer or employee of any asset in compliance with Section 6.04of the Stock or Stock Equivalents of the Ultimate Parent; PROVIDED, HOWEVER, that the Dollar Equivalent of the aggregate principal amount of all loans and advances permitted pursuant to this CLAUSE (k) shall not exceed $5,000,000 at any time;
(l) Investments consisting of Guaranty Obligations permitted by SECTION 8.1 (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of businessINDEBTEDNESS);
(m) Investments (other Investments than in Proposed Acquisitions) made at any time when no Event of Default has occurred and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount continuing within 270 days of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) Equity Issuance, of the definition Net Cash Proceeds of “Permitted Acquisition”an Equity Issuance identified in an Equity Issuance Notice as being invested pursuant to this CLAUSE (m) shall not exceed an amount equal to in (i) the Available Equity Amount at such time, minus Joint Ventures that are Permitted Joint Ventures or (ii) the sum in any other assets (other than Stock or Stock Equivalents of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;Subsidiaries or interests in Joint Ventures); and
(n) other Investments and other acquisitionsof any Subsidiary of Parent not otherwise permitted hereby; provided PROVIDED, HOWEVER, that (A) no Specified Default or Event the Dollar Equivalent of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate outstanding amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) Investments shall not exceed the Available Amount $25,000,000 at such time (in each case, as certified by a Responsible Officer of the Obligor)any time; and
(o) Investment by any Subsidiary of Parent (other Investments and than in a Permitted Acquisition) of (i) the excess of the Net Cash Proceeds received by any Subsidiary of the Parent from any Asset Sale (other acquisitions; provided that than to any Subsidiary of Parent) of any Investment made pursuant to CLAUSE (Ah), (m) no Specified Default or Event (n) above over the value of Default shall have occurred and be continuing or would result therefrom and such Investment (Bas determined in accordance with the definition of "Investment" set forth herein) at the time of and immediately after giving effect such Asset Sale or (ii) the Net Cash Proceeds of any Asset Sale of any Investment made pursuant to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis this CLAUSE (in each case, as certified by a Responsible Officer of the Obligoro).
Appears in 1 contract
Samples: Credit Agreement (Prestige Brands International, Inc.)
Investments. None The Borrower will not, nor will the Borrower permit any of the Parent, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdits Subsidiaries to, make or otherwise suffer maintain any Investments in Land under Development, Land Held for Development, Joint Ventures, Mortgage Interests, Equity Interests, seller financing received in connection with Asset Sales, Retail Property and real estate technology companies (each a "Restricted Holding"), except that, subject to exist Section 9.17, Investments in Restricted Holdings may be made and maintained so long as the aggregate value of all such Restricted Holdings does not exceed 35% of the Consolidated Total Asset Value of the Borrower at any Investment in any other Person, or make any Acquisition, other thantime and so long as:
(a) Permitted InvestmentsInvestments consisting of Development Costs (including, without limitation, Development Costs with respect to the Retail Properties specified in Section 9.06(h) in the aggregate do not exceed 10% of the Consolidated Total Asset Value of the Borrower at any time; provided that, and at any time and for so long as, the Borrower or a Subsidiary thereof owns the Hollywood and Highlands Real Estate Asset, the aforementioned percentage shall be increased to 12.5% of the Consolidated Total Asset Value of the Borrower;
(b) Investments existing on in Joint Ventures (excluding (i) subject to Section 8.04(b)(ii), Equity Interests owned by the Closing Date Borrower or any Wholly-Owned Subsidiary of the Borrower in Subsidiaries, the Co-Borrower if formed and other Investments existing on (ii) Equity Interests received as consideration for any Asset Sale) in the Closing Date and set forth on Schedule 6.07 (but aggregate do not exceed 20% of the Consolidated Total Asset Value of the Borrower at any additions thereto (including any capital contributions) made after the Closing Date)time;
(c) investments by Investments consisting of Mortgages Interests (excluding Mortgages Interests received as consideration for any Asset Sale) in the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries aggregate do not exceed 5% of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition Consolidated Total Asset Value of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 Borrower at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior calculated, however, without regard to the date of such InvestmentBorrower's Mortgage Interests relating to office property located at 250 West Pratt Street, Baltimore, Maryland);
(d) loans Investmenxx xxxxxxxxxx xx seller financing (including, but not limited to, Mortgages Interests, other Indebtedness or advances made by receivables) provided in connection with Asset Sales in the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) aggregate do not exceed 5% of the definition Consolidated Total Asset Value of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) aboveBorrower at any time;
(e) Guarantees by Investments consisting of Equity Interests received in consideration for Asset Sales in the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations aggregate do not exceed 5% of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) Consolidated Total Asset Value of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by Borrower at any Loan Party shall be subject to the limitation set forth in clause (c)(iii) abovetime;
(f) Investments in real estate related technology companies (including, without limitation, Cogent Communications Inc., so long as such entity remains a real estate technology company) in the form aggregate do not exceed 5% of Hedge Agreements permitted under Section 6.12the Consolidated Total Asset Value of the Borrower at any time;
(g) Permitted Acquisitions;Investments consisting of Land held for Development in the aggregate do not exceed 5% of the Consolidated Total Asset Value of the Borrower at any time; and
(h) Any payrollInvestments in Retail Properties shall be limited to the Hollywood and Highlands, travelPaseo Colorado and Desert Passage properties. Each of the Restricted Holdings restrictions set forth above in this Section 9.06 shall be calculated as of the last day of each fiscal quarter of the Borrower. Notwithstanding the foregoing, entertainmentthe Borrower will not, relocation and similar advances nor will the Borrower permit any of its Subsidiaries, to directors, officers and employees commence or incur any obligation to commence any new Investments of the types described in clauses (a)-(g) of this Section 9.06 (x) during any Group Member period that are expected at the time Consolidate Total Indebtedness of such advances to be treated as expenses the Borrower is greater than 65% of such Group Member for accounting purposes and that are made in the ordinary course Consolidated Total Asset Value of business;
(i) Investments received in connection with the bankruptcy or reorganization ofBorrower, or settlement (y) if the making of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition(including, without limitation, the incurrence of any Indebtedness therefor) will cause the Consolidated Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer Indebtedness of the Obligor)Borrower to be greater than 65% of the Consolidated Total Asset Value of the Borrower.
Appears in 1 contract
Investments. None of the ParentMake, the Obligor or permit any other Restricted Subsidiary shall purchase or acquire to make (including pursuant unless failure to any merger or consolidation with any Person that was not so permit would constitute a wholly-owned Restricted Subsidiary prior theretobreach of fiduciary duty), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanPerson except:
(a1) Permitted Investments;
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties Company to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iiia) above;
(e) Guarantees by the ParentFinanced Franchisees; provided, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee the initial loans or advances to any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations Financed Franchisee are or have been made pursuant to the Guaranty AgreementFinanced Franchisee Loan Documents, (ii) a Restricted Subsidiary that has not Guaranteed such loans or advances are evidenced by promissory notes pledged to the Obligations Loan Agent for the benefit of the Creditors pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan PartyPledge Agreement, (iii) all such loans and advances to Financed Franchisees shall be secured in the Parent manner described in paragraph (3) of Schedule V, (iv) all Liens in favor of the Company securing such loans and advances are duly perfected within 30 days of the initial loan or advance to such Financed Franchisee, and (v) the aggregate principal amount of all loans and advances made by the Company to any Financed Franchisee under the Financed Franchisee Loan Documents shall not Guarantee exceed at any Indebtedness or other obligation time an amount equal to the products of any Restricted Subsidiary except for any four (4) multiplied by the aggregate amount of all capital contributions theretofore made to such Guarantees under the Bond Documents or of Indebtedness permitted by clause Financed Franchisee; (b) Financed Subsidiaries; provided, that (i) such loans and advances are made pursuant to Financed Subsidiary Loan Documents, (ii) such loans or (e) advances are evidenced by promissory notes pledged to the Loan Agent for the benefit of the definition Creditors pursuant to the Pledge Agreement and (iii) all Liens in favor of the term “Permitted Debt”Company securing such loans and advances are duly perfected prior to the initial loan or advance thereunder; (c) Guarantors, provided that such loans and advances are evidenced by promissory notes; and (ivd) to the extent and only to the extent a Sublease may be deemed to be a loan or advance, to Franchisees or Financed Subsidiaries as lessees under a Sublease;
(2) the acquisition by the Company or any Guarantor of the capital stock, partnership units or other equity interests of any Financed Franchisees, Financed Subsidiaries or Guarantor; provided, that before and after giving effect to such acquisition no Default or Event of Default shall exist or be continuing;
(3) Investments in ENBC, provided, that (a) the aggregate amount of Indebtedness all Investments by the Company and other obligations of its Restricted Subsidiaries that are not Loan Parties that is Guaranteed in ENBC (which may be subordinated to Debt of ENBC owed to third parties) after the date hereof shall at no time exceed the sum of (i) $50,000,000 plus (ii) the lesser of (x) the product of $25,000,000 multiplied by the number of anniversaries of the date hereof which have then occurred and (y) 150% of the cumulative net income (minus any Loan Party net loss) of ENBC for each full fiscal quarter of ENBC occurring after July 31, 1996 plus (iii) in the case of Investments consisting of the acquisition of capital stock of ENBC, such additional amounts as shall be subject necessary for the Company to maintain ownership of greater than 50% of the limitation set forth issued and outstanding voting capital stock of ENBC; (b) upon the occurrence of an ENBC Event of Default which constitutes a default in clause payment, no further Investments may thereafter be made in ENBC; (c)(iiic) aboveupon the occurrence of an ENBC Event of Default which does not constitute a default in payment, (i) for so long as such ENBC Event of Default remains uncured and unwaived (in accordance with the terms of the ENBC Credit Agreement), no Investments may be made in ENBC and (ii) following the waiver or cure of such ENBC Event of Default (in accordance with the terms of the ENBC Credit Agreement), additional Investments thereafter made may not exceed in the aggregate $10,000,000; and (d) in no event shall the aggregate amount of Investments in ENBC made by the Company after the date hereof exceed $125,000,000;
(f4) Investments loans and advances made by the Company to an employee in connection with the form relocation of Hedge Agreements permitted under Section 6.12such employee provided such loans and advances are consistent with past practices;
(g5) Permitted Acquisitions;
(h) Any payrollnon-hostile strategic Investments consisting of purchases or other acquisitions of capital stock, travel, entertainment, relocation and similar advances to directors, officers and employees obligations or other securities of any Group Member Person or capital contributions to or other investments or acquisitions of any interest in any Person in an aggregate amount for all such Persons not in excess of $25,000,000 from the date hereof through the Termination Date, as approved by the Board of Directors of the Company, provided that such strategic investments are expected reasonably related to the Company's existing business at the time of such advances to be treated as expenses investment;
(6) direct obligations of such Group Member for accounting purposes (or obligations fully guaranteed or insured by) the United States or any agency thereof with maturities of one year or less from the date of acquisition;
(7) certificates of deposit with maturities of one year or less from the date of acquisition issued by any commercial bank having capital and that are made surplus in excess of One-Hundred Million Dollars ($100,000,000);
(8) commercial paper and variable and fixed rate notes issued by any commercial bank having capital and surplus in excess of One Hundred Million Dollars ($100,000,000);
(9) commercial paper and variable rate notes issued by, or guaranteed by, any industrial or financial company with a short term commercial paper rating of at least A-2 or the equivalent thereof by Standard & Poor's Corporation or at least P-2 or the equivalent thereof by Xxxxx'x Investors Service, Inc., and in each case maturing within one year after the date of acquisition;
(10) stock, obligations, or securities received in settlement of debts (created in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by Company or any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor)Subsidiary; and
(o11) other Investments loans and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall advances not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligortype described in the foregoing clauses (1) through (10) in the aggregate principal amount not to exceed at any one time outstanding Six Million Dollars ($6,000,000).
Appears in 1 contract
Investments. None of the Parent, the Obligor The Credit Parties shall not and shall not cause or any other Restricted Subsidiary shall purchase permit their Subsidiaries to directly or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, indirectly make or otherwise suffer to exist own any Investment in any other Person, or make any Acquisition, other thanPerson except:
(a) Permitted InvestmentsBorrower and its Subsidiaries may make and own Investments in Cash Equivalents subject to Control Agreements in favor of Agent; provided that such Cash Equivalents are not subject to setoff rights;
(b) Each Credit Party may make intercompany loans to other Credit Parties (other than Holdings) to the extent permitted under Section 5.1;
(c) Each Credit Party may make equity contributions to other Credit Parties (other than Holdings);
(d) Borrower and its Subsidiaries may each make non-cash Investments in any other Subsidiaries of the Borrower for the purpose of the extinguishment of intercompany Indebtedness solely through the offset of an intercompany receivable to an intercompany payable (i.e., no transfer or payment of cash consideration is permitted);
(e) Credit Parties and their Subsidiaries may make loans and advances to employees, officers and directors, to the extent permissible by law, for moving, entertainment, travel and other similar expenses in the ordinary course of business consistent with past practices;
(f) Investments existing on the Closing Date in SubsidiariesDate, and other Investments existing on the Closing Date and as set forth on Schedule 6.07 (but 5.3 and any renewals, amendments and replacements thereof that do not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) increase the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12thereof;
(g) Permitted Acquisitions;
each Credit Party may hold investments comprised of notes payable, or stock or other securities issued by financially troubled Account Debtors (hexcluding Affiliates) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time such Credit Party pursuant to agreements with respect to settlement of such advances to be treated as expenses of Account Debtor’s Accounts with such Group Member for accounting purposes and that are made Credit Party negotiated in the ordinary course of business;
(ih) Investments received Borrower and its Subsidiaries may make advances in connection with the bankruptcy or reorganization ofform of a prepayment of expenses, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case so long as such expenses were incurred in the ordinary course of businessbusiness and are being paid in accordance with customary trade terms of such Borrower or such Subsidiary;
(i) each of the Subsidiaries of Holdings may acquire and hold accounts receivables owing to any of them, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary terms of such Subsidiary;
(j) Investments held by any Restricted Subsidiary Borrower may enter into Interest Rate Protection Agreements to the Equity Interests extent permitted in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation5.1(j);
(k) Investments made as a result any of the receipt of noncash consideration from any Disposition of any asset Credit Parties and/or their Subsidiaries may enter into Currency Agreements in compliance accordance with the requirements contained in Section 6.04;5.1(n); and
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made representing non-cash consideration received in connection accordance with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)Section 5.7.
Appears in 1 contract
Samples: Senior Secured Priming and Superpriority Debtor in Possession Credit Agreement (Vertis Inc)
Investments. None of the ParentMake any Investments, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other than:except
(a) Permitted InvestmentsInvestments held by the Parent or such Subsidiary in the form of (i) Cash Equivalent Investments and (ii) other similar investments approved by Administrative Agent;
(b) Investments existing on advances to officers, directors and employees of the Closing Date in SubsidiariesParent and Subsidiaries for travel, entertainment, relocation and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date)analogous ordinary business purposes;
(c) investments by Investments of the Parent, Parent or the Obligor Borrower in any Subsidiary or any Joint Venture and Investments of any Subsidiary in the other Restricted Subsidiaries Borrower or in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries)another Guarantor; provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of all inter-company Indebtedness owed to (x) a Subsidiary which is not a Guarantor or (y) a Joint Venture, shall be subordinate in all respects to the Parent prior Obligations upon terms and conditions acceptable to such investmentsthe Administrative Agent, and (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments Investments permitted by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted this clause (c) in (x) Subsidiaries that are not Loan Parties Wholly Owned Subsidiary Guarantors, (excluding all such investments, loans, advances y) Joint Ventures that are not Subsidiaries and Guarantees existing on the date hereof and permitted by clause (bz) above) Non-Guarantor Joint Venture Subsidiaries shall not, at any when made, exceed $15,000,000 not at any time outstandingthe greater of (x) exceed $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment60,000,000 at any time outstanding;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, credit in the ordinary course of business, and (iii) notes receivable of, Investments received in satisfaction or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in the ordinary course of businessorder to prevent or limit loss;
(me) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition Guarantees permitted by Section 7.03;
(determined as set forth in clause f) Intentionally Deleted
(g) Investments of the definition Borrower and Guarantors in CEC Entertainment Canada, Inc., any other Subsidiaries organized under the laws of “Permitted Acquisition”Canada, and any other Foreign Subsidiary up to an aggregate amount at any time outstanding of not more than ten percent (10%) of the consolidated total assets of the Parent and its Domestic Subsidiaries and Foreign Subsidiaries (without duplication) as of the most recently ended fiscal quarter;
(h) acquisitions of (a) any franchisee of Parent or a Subsidiary, or (b) all of the assets of or equity interests in a non-Affiliate Person (or of the business unit of a non-Affiliated Person) in substantially similar lines of business as conducted by the Borrower and Parent and its Subsidiaries, provided the aggregate purchase price (including cash and any credit or non-equity financing extended by or on behalf of Borrower or Parent or a Subsidiary) in any single acquisition under this clause (b) shall not exceed an amount equal $50,000,000 and the aggregate purchase price (including cash and any credit or non-equity financing extended by or on behalf of Borrower or Parent or a Subsidiary) of all such acquisitions under this clause (b) shall not exceed $100,000,000; and provided further that in the case of any acquisition pursuant to this Section 7.02(i), (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing exists or would reasonably be expected to occur as a result therefrom of the proposed acquisition, and (Bii) at both as of the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount date of such Investment or the aggregate amount of all consideration paid in connection with any such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any following such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed Borrower delivers a certificate of Responsible Officer confirming that, and the Specified Total Adjusted Net Leverage Ratio Parent is and on a pro forma basis projects that it will continue to be, in compliance with the financial covenants of this Agreement; and
(in each case, as certified by a Responsible Officer i) Investments of the ObligorBorrower and the Guarantors not otherwise permitted by any of clauses (a) through (h) above not exceeding $10,000,000 in the aggregate in any fiscal year of Parent; provided that no Investment in a Non-Guarantor Joint Venture Subsidiary that would otherwise be permitted under this Section 7.02 shall be permitted hereunder to the extent that any portion of such Investment is used to make any prepayments, redemptions, purchases, defeasances and other payments in respect of Indebtedness permitted to be incurred pursuant to Section 7.03(e).
Appears in 1 contract
Investments. None The Subadviser is hereby authorized and directed and hereby agrees, subject to the stated investment policies and restrictions of the ParentFund as set forth in the Fund’s prospectus and statement of additional information as currently in effect and, as soon as practical after the Trust, the Obligor Fund or the Adviser notifies the Subadviser thereof in writing, as supplemented or amended from time to time (collectively referred to hereinafter as the “Prospectus”) and subject to the directions of the Adviser and the Trust’s Board of Trustees, to monitor on a continuous basis the performance of the Subadviser Assets and to conduct a continuous program of investment, evaluation and, if appropriate, sale and reinvestment of the Subadviser Assets. Notwithstanding the foregoing, the Subadviser will not be liable for any other Restricted Subsidiary shall purchase adverse consequences affecting the Trust, its investors and/or the Adviser as a result of directives given by the Adviser or acquire (including pursuant to any merger the Trust’s Board of Trustees or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior theretomeasures taken by the Adviser or the Trust’s Board of Trustees under this section 2(a), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other than:
(a) Permitted Investments;
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that unless (i) the Indebtedness resulting therefrom is permitted by clause (eSubadviser, in its execution of directives so given, fails to meet the standard of care identified in Section 10(a) of the definition of “Permitted Debt” and this Agreement; or (ii) directives given and measures taken by the amount Adviser or the Trust’s Board of Trustees were necessary to correct any effects of culpable conduct by the Subadviser. The Subadviser may engage one or more of its affiliates (including the Xxxxxx, Xxxxx & Xxxx Financial Group Ltd.) to assist the Subadviser in performing its obligations under this Agreement; however under such loans and advances circumstances, the Subadviser shall be fully accountable to the Trust and/or the Adviser for any such actions taken or omissions made by such affiliate to the extent as if such actions or omissions were taken or made by the Loan Parties Subadviser. The Adviser agrees to Restricted Subsidiaries that are not Loan Parties shall provide the Subadviser with such assistance as may be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees reasonably requested by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received Subadviser in connection with the bankruptcy Subadviser’s activities under this Agreement, including, without limitation, providing information concerning the Fund, its funds available or reorganization ofto become available for investment, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with generally as to the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result conditions of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services Fund’s or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)Trust’s affairs.
Appears in 1 contract
Samples: Subadvisory Agreement (Nationwide Variable Insurance Trust)
Investments. None of the Parent, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other than:
(a) Permitted Investments;
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, not exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investmentoutstanding;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor).
Appears in 1 contract
Investments. None BHR and Borrowers shall not, and shall not permit any of the Parenttheir Subsidiaries to, the Obligor directly or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdindirectly, make or otherwise suffer to exist own any Investment in any other Real Property Asset or in any Person, or make including any AcquisitionJoint Venture, other thanexcept:
(ai) Permitted InvestmentsBHR and Borrowers and their Subsidiaries may make and own Investments in Cash Equivalents;
(bii) BHR and Borrowers and their Subsidiaries may continue to own the Investments existing on owned by them as of the Closing Date in Subsidiaries, any Subsidiaries of BHR and other Investments existing on Borrowers;
(iii) BHR and Borrowers and their Subsidiaries may make intercompany loans to the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Dateextent permitted under Section 7.1(iv);
(civ) investments BHR and Borrowers and their Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3 annexed hereto;
(v) BHR or its Subsidiaries may purchase a Real Property Asset with consent of the ParentAdministrative Agent, such consent not to be unreasonably withheld or delayed following delivery by BHR to the Obligor Administrative Agent of engineering reports and environmental reports reasonably satisfactory to the Administrative Agent;
(vi) BHR or its Subsidiaries may make and own Investments (other Restricted than Investments constituting intercompany loans permitted pursuant to clause (iii) above) in wholly owned Subsidiaries; and 98 106 (vii) BHR and Borrowers and their Subsidiaries may make and own other Investments in Equity Interests in their Restricted Subsidiaries (including as capital contributions an aggregate amount not to such Restricted Subsidiaries)exceed at any time $25,000,000; provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries without the consent of the Parent prior to such investmentsRequisite Lenders, (ii) which consent shall not be unreasonably withheld or delayed, BHR and its Subsidiaries shall not make an Investment in any such Equity Interests held by a Loan Party Person that owns, leases or operates hotels if after giving effect thereto BHR and its Subsidiaries, shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe own greater of (x) $20,000,000 and (y) than 15% of IKE-Adjusted EBITDA as any class of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date equity Securities of such InvestmentPerson;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor).
Appears in 1 contract
Investments. None Each Borrower will not, and will not permit any of the Parentits Subsidiaries to, the Obligor make, incur, assume or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Permitted Investments existing on the Amendment Effective Date and identified in Item 8.2.5(a) ("Ongoing Investments") of the Disclosure Schedule and extensions, replacements of Investments in the same Person or renewals thereof (provided that no such extension, replacement or renewal shall be permitted if it would (x) increase the amount of such Investment at the time of such extension, replacement or renewal above the amount reflected in Item 8.2.5(a) of the Disclosure Schedule or (y) result in a Default or Event of Default);
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date)Cash Equivalent Investments;
(c) investments by the ParentInvestments which are Permitted Business Acquisitions;
(d) without duplication, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including Investments permitted as capital contributions Capital Expenditures pursuant to such Restricted Subsidiaries); provided that Section 8.2.7;
(i) Investments by a Subsidiary Borrower or a Subsidiary Guarantor in the Parent (A) by way of contributions to capital or the making of loans or advances, to the extent the amount of such Restricted Investment would be permitted as a dividend pursuant to clause (a) of Section 8.2.6 at the time of such Investment and (B) by way of advances that are pursuant to the Parent's cash management system for it and its Subsidiaries and (ii) Investments by a direct Subsidiary of the Parent (other than a Subsidiary Borrower) in the Parent;
(f) Investments by a Subsidiary Borrower or a Subsidiary Guarantor in Subsidiary Borrowers, and Subsidiary Guarantors that are Restricted Wholly Owned Subsidiaries of a Subsidiary Borrower or a Subsidiary Guarantor, or to the extent permitted by clause (r) of Section 8.2.2, in a Subsidiary Guarantor that is neither a Subsidiary Borrower nor a Subsidiary of a Subsidiary Borrower;
(g) Investments by a Borrower or a Subsidiary Guarantor in Subsidiaries of the Parent prior that are not permitted by the preceding clause (f) or succeeding clause (h), by way of contributions to such investmentscapital, (ii) any such Equity Interests held by a Loan Party shall be pledged the making of loans or advances or the incurrence of Contingent Liabilities, to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries Investments that are made in any Fiscal Year (commencing with the 2000 Fiscal Year) does not Loan Parties exceed $11,000,000 and the aggregate amount of such Investments at any time outstanding does not exceed $20,000,000 in any Fiscal Year (excluding all commencing with the 2000 Fiscal Year and increasing by $1,000,000 in each Fiscal Year thereafter) (exclusive of such investments, loans, advances and Guarantees Investment existing on as of the date hereof and identified in Item 8.2.5(a) ("Ongoing Investments") of the Disclosure Schedule);
(h) Investments by the Parent in a Subsidiary Borrower or any Subsidiary Guarantor;
(i) Investments by a Subsidiary of the Parent that is neither a Subsidiary Borrower nor a Subsidiary Guarantor in the Parent or any Subsidiary of the Parent;
(j) Investments evidenced by the Demand Capitalization Notes;
(k) Investments in franchisees of Dollar, Thrifty or Thrifty Car Sales
(i) by way of (A) guaranties or (B) obtaining letters of credit for the benefit of beneficiaries selected by any such franchisees and with respect to which any such franchisee is the account party or is benefitted and the Parent or any of its Subsidiaries is obligated to reimburse the issuer thereof for drawings thereunder, in each case, in respect of obligations of such franchisees in respect of the leasing by such franchisees of real or personal property under arrangements which would not, under GAAP, be classified as capitalized leases, to the extent the sum of (x) the guaranteed obligations payable thereunder (other than any 100 portion of rental payments that are determined on the basis of revenues generated by the property subject to such leases or by the operations conducted on the property subject to such leases) and (y) the aggregate stated amounts of such letters of credit, together with unreimbursed obligations in respect thereof, does not exceed at any time $10,000,000 (exclusive of Investments permitted by clause (ba) above);
(ii) shall not, at any when made, by way of the making of loans or advances to such franchisees or guaranties for their benefit or otherwise to the extent such Investments do not exceed $15,000,000 in the aggregate at any time outstandingthe greater $12,000,000 (exclusive of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is Investments permitted by clause (ea) above); or
(iii) to the extent permitted under clause (a)(i) of Section 8.2.1; provided, however, that the definition aggregate amount of “Permitted Debt” the Investments made pursuant to clauses (k)(i) and (iik)(ii) the amount of such loans that were funded in cash and advances made by the Loan Parties to Restricted Subsidiaries that are outstanding at any time does not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) aboveexceed $5,000,000;
(el) Guarantees by the Parentother Investments in an aggregate amount at any time not to exceed $10,000,000; provided, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parenthowever, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that that
(i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed Investment which when made complies with the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) requirements of the definition of the term “Permitted Debt”, and "Cash Equivalent Investment" may continue to be held notwithstanding that such Investment if made thereafter would not comply with such requirements; and
(ivii) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed no Investment otherwise permitted by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
c), (f) Investments in the form of Hedge Agreements permitted under Section 6.12;
e), (g) Permitted Acquisitions;
(h) Any payroll), travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
or (l) Investments consisting of (i) extensions of trade creditshall be permitted to be made if, (ii) deposits made in connection with the purchase of goods immediately before or services or the performance of leasesafter giving effect thereto, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)continuing.
Appears in 1 contract
Samples: Credit Agreement (Dollar Thrifty Automotive Group Inc)
Investments. None of the ParentMake any Investments, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Permitted Investments;
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including Acquisitions) in any capital contributions) made after the Closing Date);
Person (c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiariesthan Holdings); provided that (i) (both before and after giving effect to any such Restricted Subsidiaries are Restricted Subsidiaries Investment), there shall exist no Default or Event of Default, (b) if any such Investment is an Acquisition, such Acquisition shall be of assets or Equity Interests of any Person engaged in a Similar Business, (c) if any such Investment is an Acquisition of a majority of the Parent prior Equity Interests of any Person, such Person's board of directors or similar governing body shall have approved such Acquisition, (d) after giving effect to any Acquisition on a Pro Forma Basis, the Borrower shall be in compliance with Section 8.08(a), (b), and (c) and (e) after giving effect to any Acquisition (subject to the grace period provided for in Section 7.09(b)), the Borrower shall be in compliance with Section 7.09(d);
(b) intercompany advances by the Borrower or any Subsidiary to Holdings to fund payments of interest on Indebtedness (other than Disqualified Preferred Stock) of Holdings or to fund payments of dividends on Disqualified Preferred Stock issued by Holdings; provided, that, (i) any such investmentsIndebtedness or Disqualified Preferred Stock is guaranteed by the Borrower, and (ii) the proceeds received by Holdings from the issuance of such Indebtedness or Disqualified Preferred Stock shall have been invested by Holdings in the Borrower (or used to refinance in full Indebtedness (including Disqualified Preferred Stock), the proceeds of which were previously invested in the Borrower);
(c) intercompany advances by the Borrower or any Subsidiary to Holdings to fund payments and prepayments (whether optional or mandatory) of principal of, Indebtedness (other than Disqualified Preferred Stock) of Holdings, and to fund optional and mandatory redemptions in respect of Disqualified Preferred Stock issued by Holdings, provided that (i) any such Equity Interests held by a Loan Party shall be pledged to the extent required Indebtedness or Disqualified Preferred Stock is guaranteed by the definition of the term “Collateral and Guarantee Requirement” Borrower and (iiiii) the aggregate amount of such investments intercompany advances made pursuant to this Section 8.02(c), together with the aggregate amount of dividends or distributions made by the Loan Parties inBorrower pursuant to Section 8.06(c), and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when madetime, exceed $15,000,000 at the aggregate amount of investments made by Holdings in the Borrower with the proceeds received by Holdings in respect of any time outstandingthe greater issuance of Indebtedness (xincluding Disqualified Preferred Stock) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior by Holdings subsequent to the date of such InvestmentInitial Closing Date which is so guaranteed by the Borrower;
(d) loans or advances made Investments by the Parent, the Obligor Borrower or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is in Holdings not permitted by clause Section 8.02(b) or (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guarantyc); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (Bii) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the sum (following the Initial Closing Date) of (A) the aggregate amount of all consideration paid Investments made by the Borrower or any Subsidiary in connection with such Holdings (other any intercompany advances made by the Borrower or any Subsidiary pursuant to Section 8.02(b) or (c)) plus (B) the Equity Interests or Disqualified Preferred Stock repurchased, redeemed, retired, acquired or otherwise receiving payments on account of any return of capital by the Borrower (other than any repurchase, redemption, retirement, acquisition or other payment on account of any return of capital pursuant to Section 8.06(c) or (determined as set forth e)) plus (C) the amount of dividend payments or distributions made by the Borrower in clause respect of its Equity Interests or Disqualified Preferred Stock (gother than any dividends or distributions permitted by Section 8.06(a), (b), (c) or (d)) plus (D) the amount of Subordinated Debt prepaid, redeemed, purchased, defeased or otherwise satisfied by the definition Borrower or any Subsidiary (other than any prepayment, redemption, purchase, defeasance or other satisfaction of “Permitted Acquisition”Subordinated Debt pursuant to Section 8.10(b)(i) or (ii)), shall not exceed an aggregate amount equal to the Available Amount at such time (in each case, sum of $1,000,000,000 increased on a cumulative basis as certified by a Responsible Officer of the Obligor)end of each fiscal quarter of the Borrower, commencing with the fiscal quarter ending March 31, 2005 by an amount equal to 50% of Consolidated Net Income for the fiscal quarter then ended (or, if such Consolidated Net Income for such fiscal quarter is a deficit, less 50% of such deficit) plus an amount equal to 100% of the proceeds from any issuances of Equity Interests by Holdings (provided the proceeds from such any such issuance (or, without duplication, from any Equity Interests or Indebtedness of Holdings purchased, redeemed or cancelled in conversion by virtue of such issuance) are (or were) invested in the Borrower) subsequent to the Initial Closing Date plus 100% of the proceeds from any issuances of Indebtedness by Holdings (provided that (i) such Indebtedness is not guaranteed by the Borrower or any Subsidiary and (ii) the proceeds from such issuance (or, without duplication, from any Equity Interests or Indebtedness of Holdings purchased, redeemed or cancelled in conversion by virtue of such issuance) are (or were) invested in the Borrower) subsequent to the Initial Closing Date plus 100% of the proceeds from any issuance of Equity Interests by the Borrower (or, without duplication, from any Equity Interests or Indebtedness of the Borrower purchased, redeemed or cancelled in conversion by virtue of such issuance) subsequent to the Initial Closing Date; and
(oe) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)Titan Acquisition.
Appears in 1 contract
Investments. None 8.1. Notwithstanding any provision in any investment agreement to the contrary, the liability of Yorsipp (Trustees) Limited shall be limited at all times to the value of the Parentassets held by it in respect of the relevant member’s self-invested personal pension.
8.2. When instructing or recommending investments, the Obligor or Intermediary shall not permit any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not investment for a whollymember’s self-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thaninvested personal pension which would either:
(a) Permitted Investments;fall outside of the FCA's list of standard assets as defined by paragraph IPRU-INV 5.9.1R of the FCA Handbook and replicated in Schedule 1 of this Agreement. This means that at the point of purchase the asset must be listed as a standard asset as defined by the FCA paragraph IPRU-INV 5.9.1R and the asset must be capable of being accurately and fairly valued on an ongoing basis. The asset must also be readily realisable within 30 days, whenever required and you must not be possessed of knowledge that the investment, while meeting this criteria at the point of purchase, will foreseeably fail to do at a later date. In the event of an investment/asset being purchased which does not meet these requirements the intermediary will immediately notify the Scheme Administrator to discuss remedial action. At the Scheme Administrator's request, the Intermediary undertakes to sell the investment/asset at their own cost and warrants to make good any losses incurred by the Scheme in respect of fees or investment losses caused by a breach of paragraph 8 of this Agreement. In the event that an investment/asset when purchased met the criteria of being a standard asset, subsequently fails to meet the definition of a standard asset, the Intermediary will immediately notify the Scheme Administrator so that remedial action can be considered between the Scheme Administrator, the member and where appropriate, the member’s financial adviser.
(b) Investments existing on result in the Closing Date Member’s self-invested personal pension holding Taxable Property, as defined in Subsidiaries, and other Investments existing on Schedule 29A Part 2 of the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);Finance Act 2004; or
(c) investments by result in the ParentMember’s self-invested personal pension holding shares in any UK or overseas company where the Member is a Controlling Director, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries or has Control of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause company either alone or with Associated Persons. Controlling Director is as defined in paragraph (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as section 452 of the last day Corporation Tax Act 2010, Control is as defined in section 1124 of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant Corporation Tax Act 2010, and Associated Persons means any member of the pension scheme, any person connected with such a member, any arrangement (under that or another pension scheme) relating to Section 5.04(aa member of the pension scheme, any arrangement (under that or another pension scheme) or 5.04(b) prior relating to the date of a person connected to such Investment;a member, any associated pension scheme; or
(d) loans result in Yorsipp (Trustees) Limited holding shares that would give them Control of any UK or advances made by overseas company, where Control is as defined in section 1124 of the Parent, the Obligor or Corporation Tax Act 2010.
8.3. Before making any other Restricted Subsidiary to any Restricted Subsidiary; provided investment that falls under 8.2 (a) (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) above, the Parent shall not Guarantee any Indebtedness or other obligation Intermediary must obtain prior approval from Yorsipp(Trustees)Limited.
8.4. In the event of any Restricted Subsidiary except investment being made in respect of a Member’s self-invested personal pension which would be in breach of the restrictions set out in section 8.2 of this agreement (either at the outset or subsequently), the Intermediary shall inform Yorsipp immediately of this and of the nature of such breach. If Yorsipp is advised, or otherwise becomes aware, that any investment made in respect of a Member’sself-invested personal pension breaches the restrictions set out in 8.2 of this agreement, they will require action to be taken to sell the relevant asset(s) as soon as practicable. Any penalties, tax charges, fines, levies, costs and/or expenses that arise from investments made in breach of the restrictions set out in section8.2 of this agreement and/or their subsequent sale in accordance with the foregoing paragraph will be paid from the Member’s self-invested personal pension. Neither Yorsipp Limited nor any connected or associated company will be liable for any such Guarantees under penalties, tax charges, fines, levies, costs and/or expenses.
8.5. The intermediary is responsible for providing the Bond Documents or of Indebtedness permitted by clause (b) or (e) client with a suitability report in a durable medium before the transaction is concluded as detailed in COBS 9A.3 of the definition FCA handbook. It must specify the advice given and how that advice meets the preferences, objectives and other characteristics of the term “Permitted Debt”client. Where the transaction is concluded using a means of distance communication which prevents the prior delivery of the suitability report, the intermediary may provide the suitability report in a durable medium immediately after the client is bound by the transaction, provided that the client has consented to receiving the suitability report without undue delay after the conclusion of the transaction, and (iv) the aggregate amount firm has given the client the option of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject delaying the transaction in order to receive the limitation set forth suitability report in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)advance.
Appears in 1 contract
Samples: Professional Client Agreement
Investments. None No Obligor will, nor will it permit any of the Parent, the Obligor or any other its Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdSubsidiaries to, make or otherwise suffer permit to exist remain outstanding any Investment in any other Person, or make any Acquisition, other thanInvestments except:
(a) Investments outstanding on the date hereof and identified in Schedule VI hereto;
(b) operating deposit accounts with banks located in any country where operations are conducted by the Borrowers and their Subsidiaries;
(c) Permitted Investments;
(bd) Investments existing on the Closing Date by any Group Member in any Wholly Owned Restricted Subsidiary (other than in Bonlam, Fabrene or their respective Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 as to which clauses (but not any additions thereto (including any capital contributions) made after the Closing Datee);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (iif), (g) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iiih) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) below shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) aboveapply);
(e) Guarantees Investments (x) in the case of Fabrene Holdings and PGI Polymer, evidenced by the ParentFabrene Intercompany Notes and constituting Indebtedness of Fabrene to Fabrene Holdings and PGI Polymer permitted under Section 9.07(d) hereof and (y) in the case of PGI Polymer, evidenced by the Obligor or any other Restricted Subsidiary Bonlam Intercompany Notes and constituting Indebtedness of Indebtedness or other obligations Bonlam to PGI Polymer permitted under Section 9.07(d) hereof, so long as in the case of both of the Parentforegoing clauses (x) and (y) such Intercompany Notes shall have been delivered in pledge to the Administrative Agent pursuant to the Security Agreement on the Effective Date (or, in the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result case of any such Person being a joint Intercompany Notes executed and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guarantydelivered after the Effective Date, promptly following such execution and delivery); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments (in each case as additional equity capital) by PGI in PGI Polymer and by PGI Polymer in Fabrene, from the form proceeds of Hedge Agreements a Debt Issuance permitted under to be applied to the prepayment of the Fabrene Acquisition Intercompany Note pursuant to Section 6.122.10(b) hereof, so long as each such Investment occurs immediately following receipt by PGI of the proceeds of such Debt Issuance and such proceeds are in fact applied to the prepayment of the Fabrene Acquisition Intercompany Note (and to the prepayment of Loans hereunder) as contemplated by Section 2.10(d) hereof;
(g) Permitted AcquisitionsInvestments by Bonlam in one or more Restricted Subsidiaries of Bonlam;
(h) Any payrollInvestments by the Mexican Xxxxx in Bonlam consisting of an unsecured receivable, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at so long as the time of such advances to Mexican Xxxxx shall be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of businessa Restricted Subsidiary;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case permitted under Section 9.05(d)(iv) hereof; Credit Agreement ----------------
(j) Hedging Transactions entered into in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 business and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidationfor speculative purposes;
(k) Investments made as a result by PGI (which may include transfers of cash or other Property, determined in each case at the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade creditfair market value thereof), (ii) deposits made in connection with the purchase of goods either directly or services through one or the performance of leases, licenses or contractsmore Restricted Subsidiaries, in each caseone or more non-Wholly Owned Subsidiaries of PGI, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, so long as the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause after the date hereof (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor).i.
Appears in 1 contract
Samples: Credit Agreement (Fabrene Group Inc)
Investments. None of the ParentMake any Investments, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Permitted InvestmentsInvestments held by the Borrower or such Subsidiary in the form of cash equivalents;
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investmentsBorrower in any Guarantor, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result Investments of any such Person being a joint Guarantor in the Borrower or in another Guarantor and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements Borrower or Guarantors permitted under by Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business7.03(i);
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement consisting of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement extensions of claims due or owing to any Group Member, in each case credit in the ordinary course nature of business;
(j) Investments held by any Restricted Subsidiary accounts receivable or notes receivable arising from the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions grant of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and (iiiii) notes receivable ofInvestments received in satisfaction of judgments or pursuant to any plan or reorganization or similar arrangement upon the bankruptcy or insolvency of trade creditors or account debtors;
(d) Guarantees permitted by Section 7.03;
(e) Permitted Acquisitions involving consideration (including consideration in the form of equity securities of Borrower, or prepaid royalties assumed Indebtedness, “earn-outs,” and other extensions similar contractual arrangements (as determined as of credit to, customers and suppliers that are the date of the consummation of such Permitted Acquisition in accordance with FAS 141R)) not Affiliates in excess of $100,000,000 during any twelve month period (it being agreed no payments in respect of any Group Member and that are earn-out or other similar contractual arrangement nor adjustment to the associated liabilities pursuant to FAS 141R made following the date of the consummation of the related Permitted Acquisition, shall result in non-compliance with this Section);
(f) Investments made in the ordinary course of businessbusiness pursuant to (i) Ducommun Incorporated Executive Compensation Deferral Plan dated May 5, 1993, (ii) Xxxxxxxx Incorporated Compensation Deferral Plan No. 2 dated October 15, 1994 and (iii) any extensions or replacements of such plans which do not materially and adversely increase the obligations of Borrower or its Subsidiaries thereunder;
(mg) Investments in Excluded Subsidiaries existing as of the Closing Date and disclosed on Schedule 7.02 and additional Investments in Excluded Subsidiaries made following the Closing Date which are in an aggregate amount not to exceed $15,000,000;
(h) Investments consisting of promissory notes, equity securities, “earn-outs” or other similar contractual arrangements received following the Closing Date in connection with a Disposition by the Borrower or any of its Subsidiaries made in compliance with Section 7.05;
(i) Investments existing as of the date hereof and other acquisitionsset forth on Schedule 7.02 and any renewals or extensions of any such Investments; provided that, that the amount of any such Investment is not increased at the time each of such Investment renewal or acquisition is purchased, made or otherwise acquired, the aggregate amount extension of such Investment except by an amount equal to a reasonable premium or other reasonable amount paid in respect of the aggregate amount of all consideration paid underlying obligations and fees and expenses reasonably incurred in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such timereplacement, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such timerenewal or extension;
(nj) other Investments Investments, payments or advances by the Borrower in respect of Swap Contracts permitted hereunder;
(k) advances to officers, directors and other acquisitions; provided that (A) no Specified Default or Event employees of Default shall have occurred the Borrower and be continuing or would result therefrom its Subsidiaries for travel, entertainment, relocation and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquiredanalogous ordinary business purposes, the aggregate outstanding principal amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall which does not exceed the Available Amount $1,000,000 at such time (in each case, as certified by a Responsible Officer of the Obligor)any time; and
(ol) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at not exceeding $3,000,000 in the time of and immediately after giving effect to aggregate in any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer fiscal year of the Obligor)Borrower.
Appears in 1 contract
Samples: Credit Agreement (Ducommun Inc /De/)
Investments. None The Borrower will not, nor will it permit any of the Parent, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdits Subsidiaries to, make or otherwise suffer permit to exist remain outstanding any Investment in any other Person, or make any Acquisition, other thanInvestments except:
(a) operating deposit accounts with banks;
(b) Permitted Investments;
(bi) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor Borrower and the other Restricted its Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Capital Stock of Subsidiaries of the Parent prior to such investments, Borrower (iiother than any Excluded Non-Media Subsidiaries) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) advances by the amount Borrower and its Subsidiaries to any of such loans the Subsidiary Guarantors, and advances made by any of the Loan Parties to Restricted Designated SBG Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each caseBorrower, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of businessbusiness permitted to be incurred by Section 7.01(c);
(md) Investments outstanding on the Third Amendment Effective Date (other than Investments permitted under clauses (a), (b) and other acquisitions; provided that(c) of this Section) and identified in Schedule 4.14(b);
(e) the acquisition of the Capital Stock of Persons or the formation of Wholly Owned Subsidiaries of the Borrower for the acquisition of Capital Stock of Persons, at resulting in such Persons becoming Wholly Owned Subsidiaries of the time Borrower, in each case for the purpose of enabling the Borrower and its Subsidiaries to consummate acquisitions permitted by Section 7.04;
(f) Guarantees by Subsidiary Guarantors of Indebtedness of the Borrower to the extent such guarantees are permitted under Section 7.01;
(g) Guarantees permitted under Sections 7.01(e) and 7.01(i);
(h) Investments by the Borrower and its Subsidiaries in any (i) Receivables Subsidiary in connection with any Receivables Financing permitted under Section 7.01(f) and (ii) Securitization Subsidiary in connection with any Non-A/R Securitization Financing under Section 7.01(n);
(i) additional Investments made after the Third Amendment Effective Date, which when taken together with the Aggregate Consideration for Acquisitions made pursuant to Section 7.04(g), shall not exceed $500,000,000 plus to the extent that any such Investment or acquisition is purchased, made sold or otherwise acquiredliquidated, repaid or provides other cash distributions, 100% of the aggregate amount equal to the Net Cash Proceeds or fair market value of marketable securities with respect to such Investment (less the cost of the disposition of such Investment and net of any tax expenses, commissions and other fees and expenses paid by the Borrower or the aggregate amount any of all consideration paid its Subsidiaries in connection with such acquisition (determined as set forth in clause (gtherewith) received by the Borrower or any of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such timeits Subsidiaries, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of the making of each such Investment or acquisition is purchased, made would result therefrom;
(j) Investments by the Borrower or otherwise acquired, any of its Subsidiaries not exceeding $200,000,000 in the aggregate amount with respect to payments required to be made after the Third Amendment Effective Date with respect to purchase options relating to the purchase of such Investment or Stations by the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments Borrower and other acquisitionsits Subsidiaries; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any the making of each such Investment or acquisitionwould result therefrom;
(k) Investments by the Borrower or any of its Subsidiaries with respect to payments required to be made after the Third Amendment Effective Date with respect to purchase options in connection with the Barrington Acquisition and the Cox Acquisition;
(l) Investments in Subsidiaries of the Holding Company that provide services or equipment to the Borrower and its Subsidiaries solely in the ordinary course of business at prices and on terms and conditions not less favorable than could be obtained on an arm’s-length basis;
(m) the purchase, redemption, retirement, acquisition for value, defeasance, voluntary payment or prepayment in full or in part by the Borrower of the 5.375% Senior Unsecured Notes, the Total Adjusted Net Leverage Ratio shall 6.125% Senior Unsecured Notes, the 5.125% Senior Unsecured Notes, the 5.625% Senior Unsecured Notes, the 5.875% Unsecured Notes or Permitted Additional Indebtedness with the proceeds of Indebtedness permitted under Sections 2.01(c), 7.01(h), (j) or (m);
(n) the purchase, redemption, retirement, acquisition for value, defeasance, voluntary payment or prepayment or refinancing in full or in part by the Borrower of any Other Debt, in an aggregate amount not to exceed (i) $200,000,000 plus (ii) any payments permitted by Section 7.08(g), Section 7.08(h), Section 7.08(j) and Section 7.08(l) minus (iii) the Specified Total Adjusted Net Leverage Ratio on a pro forma basis amounts of any payments made thereunder;
(o) any refinancing with the proceeds of Permitted Second Priority Refinancing Debt, Permitted Senior Unsecured Refinancing Debt or Permitted Subordinated Refinancing Debt; and
(p) Investments made by the Borrower or its Subsidiaries in each caseUnrestricted Subsidiaries that are formed for the purpose of, as certified by a Responsible Officer and primarily engaged in, research and development material to any line of business of the Obligor)Borrower, in an aggregate principal amount not to exceed in any fiscal year, when combined with any Restricted Payments made pursuant to Section 7.08(e) in the same fiscal year, $25,000,000.
Appears in 1 contract
Samples: Incremental Loan Amendment (Sinclair Broadcast Group Inc)
Investments. None Company shall not, and shall not permit any of the Parentits Subsidiaries to, the Obligor directly or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdindirectly, make or otherwise suffer to exist own any Investment in any other Person, or except:
(i) Company and its Subsidiaries may make any Acquisition, other than:and own Investments in Cash Equivalents (as determined on the date of acquisition thereof);
(a) Permitted Investments;
(b) Company and its Subsidiaries may continue to own the Investments existing on owned by them as of the Closing Date in Subsidiariesany Subsidiaries of Company; (b) Company and its Domestic Subsidiaries may make additional Investments in Company or Subsidiary Guarantors (including without limitation any such Investments necessary in order to consummate the Tender Offer in accordance with the Tender Offer Materials, the Merger in accordance with the Merger Agreement and the Second Merger) subject to compliance with subsections 6.7 and 6.8; (c) any Foreign Subsidiary may make additional Investments in any other Foreign Subsidiary; and (d) Acquisition Co. may purchase the DAH Common Stock pursuant to the Tender Offer in accordance with the Tender Offer Materials;
(iii) Company and its Subsidiaries may make intercompany loans to the extent permitted under subsection 7.1(iv) and incur Contingent Obligations permitted by subsection 7.4;
(iv) Company and its Subsidiaries may make Investments existing in Wholly-Owned Subsidiaries that are Domestic Subsidiaries in an aggregate amount not exceeding $22,000,000 in order to consummate an acquisition substantially on the terms described to the Syndication Agent prior to the date hereof.
(v) Company and its Subsidiaries may continue to own the Investments owned by them as of the Closing Date and set forth on described in Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent7.3 annexed hereto and extensions or renewals thereof, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) no such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party extension or renewal shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing made in reliance on the date hereof and permitted by this clause (bv) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of if it would (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) increase the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected Investment at the time of such advances renewal or extension or (y) result in a Potential Event of Default or an Event of Default hereunder;
(vi) Company and its Subsidiaries may make and own Investments received in connection with Asset Sales permitted pursuant to be treated as expenses subsection 7.7(xii); 108
(vii) Investments constituting Consolidated Capital Expenditures (and any capital expenditures excluded from the definition of such Group Member Consolidated Capital Expenditures pursuant to clause (y) thereof);
(viii) Investments made by Company or any of its Subsidiaries in Permitted Acquisitions in accordance with subsection 7.7(viii);
(ix) Investments arising under or in connection with Interest Rate Agreements and Currency Agreements entered into in the ordinary course of business and not for accounting purposes speculative purposes;
(x) Company and that are made its Subsidiaries may make and own Investments received in connection with the bankruptcy or reorganization or suppliers and customers and in settlement of delinquent obligations of and other disputes with customers and suppliers arising in the ordinary course of business;
(ixi) Company and its Subsidiaries may make and own Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course form of business;
loans (jx) Investments held to officers, directors and employees of the Company and its Subsidiaries for the sole purpose of purchasing common stock of Parent (or purchases of such loans made by others) in an aggregate principal amount at any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each casetime outstanding not to exceed $5,000,000, so long as such Investments were not made in contemplation immediately before and after giving effect thereto, no Potential Event of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have has occurred and be is continuing or would result therefrom and (By) at to Global Technology Partners in an aggregate principal amount not to exceed $1,000,000 for the time each such Investment sole purpose of purchasing common stock of Parent;
(xii) Company and its Subsidiaries may make and own Investments solely from the proceeds of capital contributions by Parent to the Company or acquisition is purchasedsales of equity Securities by the Company to Parent, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each casecase only to the extent proceeds from such capital contribution or sale (x) are not required to be applied to repay the Term Loans or to reduce the Acquisition Loan Commitments pursuant to subsection 2.4(B)(iii)(c), as certified (y) arise from the issuance by a Responsible Officer Parent of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom its equity Securities, and (Bz) at are received after the time Closing Date for the purpose of making an Investment identified in a notice delivered to the Agents on or prior to the date such capital contribution or sale or repayment is made, so long as immediately before and immediately after giving effect to any such Investment Investment, no Potential Event of Default or acquisition, the Total Adjusted Net Leverage Ratio shall Event of Default has occurred and is continuing; and
(xiii) Company and its Subsidiaries may make and own other Investments in an aggregate amount not to exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)at any time $10,000,000.
Appears in 1 contract
Investments. None of the ParentAll expenditures made and all liabilities incurred (contingently or otherwise, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a whollybut without double-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other than:
(a) Permitted Investments;
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that counting): (i) such Restricted Subsidiaries are Restricted Subsidiaries for the acquisition of stock, partnership or other equity interests or for the Parent prior to such investmentsacquisition of Indebtedness of, or for loans, advances, capital contributions or transfers of property to, any Person; (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” in connection with Real Estate Assets Under Development; and (iii) for the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result acquisition of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) Person. In determining the aggregate amount of Investments made pursuant outstanding at any particular time: (a) there shall be included as an Investment all interest accrued with respect to this Indebtedness constituting an Investment unless and until such interest is paid; (b) there shall be deducted in respect of each such Investment any amount received as a return of capital (but only by repurchase, redemption, retirement, repayment, liquidating dividend or liquidating distribution); (c) there shall not be deducted in respect of any Investment any amounts received as earnings on such Investment, whether as dividends, interest or otherwise, except that accrued interest included as provided in the foregoing clause (ma) subsequent to the Closing Date as of such time may be deducted when paid; and (Bd) there shall not be deducted from the aggregate amount of Investments any decrease in the value thereof. JOINDER DOCUMENTS. The one or more Joinder Agreements among the Agent, the Banks and any Wholly-owned Subsidiary which is to become a Borrower at any time after the Closing Date, the form of which is attached hereto as EXHIBIT G, together with all Available Amount Expenditures based on usage of the Available Equity Amount subsequent other documents, instruments and certificates required by any such Joinder Agreement to be delivered by such Wholly-owned Subsidiary to the Closing Date as Agent and the Banks on the date such Wholly-owned Subsidiary becomes a Borrower hereunder. LEASES. Leases, licenses and agreements, whether written or oral, relating to the use or occupation of such time;
(n) space in or on the Buildings or on the Real Estate Assets by Persons other Investments and other acquisitions; provided that (A) no Specified Default than the Borrower, its Subsidiaries or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)Partially-Owned Entity.
Appears in 1 contract
Investments. None of the ParentMake any Investments, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Permitted Investments;
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries extensions of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of trade credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) business and Investments received in connection with the bankruptcy or reorganization of, or in settlement of delinquent accounts and or disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case arising in the ordinary course of businessbusiness with, customers and vendors;
(b) Investments in Cash Equivalents;
(c) Guaranty Obligations permitted by Section 9.2;
(d) loans and advances to employees of any Loan Party in the ordinary course of business (including for travel, entertainment and relocation expenses) in an aggregate amount for all Loan Parties not to exceed $1,500,000 at any one time outstanding;
(e) Investments in assets useful in the business of the Borrower and its Subsidiaries made by the Borrower or any of its Subsidiaries with the proceeds of any Reinvestment Deferred Amount;
(f) intercompany Investments by any Loan Party in the Borrower or any Person that, prior to such investment, is a Wholly Owned Subsidiary Guarantor;
(g) acquisitions by the Borrower or any Wholly Owned Subsidiary Guarantor of all of the outstanding Capital Stock of Persons or of assets constituting an ongoing business (each a "Second Lien Facility Permitted Acquisition") for consideration (including all Indebtedness and contingent liabilities of such Persons or 101 relating to such assets, but excluding any indemnity obligation thereunder which is not reasonably expected to become an actual liability as of the date of such Second Lien Facility Permitted Acquisition) not to exceed (i) $35,000,000 in the aggregate during any fiscal year of the Borrower and (ii) $125,000,000 in the aggregate during the term of this Agreement; provided that, (A) each such Second Lien Facility Permitted Acquisition is of a Person or ongoing business engaged in business activities (x) conducted principally within the United States and (y) in which the acquiror is permitted to engage pursuant to Section 9.16; (B) any Person so acquired becomes a Guarantor under this Agreement and the other requirements of Section 6.10 and the Security Documents are satisfied within the applicable time periods set forth therein (provided that Foreign Subsidiaries of any Person so acquired will not be required to become Guarantors); (C) no Default or Event of Default has occurred or is continuing both before and after giving effect to such Second Lien Facility Permitted Acquisition and after giving effect to each such Second Lien Facility Permitted Acquisition and all Indebtedness incurred in connection therewith, the Loan Parties shall be in pro forma compliance with the covenants and agreements set forth in this Agreement (including Section 9.1, it being understood that such covenants shall be determined on a Pro Forma Basis as provided in Section 9.1 and that, in addition thereto, for purposes thereof, such Second Lien Facility Permitted Acquisition and all related Indebtedness and liabilities shall be deemed to have been consummated and incurred as of the first day of the most recent four fiscal quarter period for which financial results are available and that all such related Indebtedness shall be deemed outstanding for purposes of such pro forma compliance, and that pro forma adjustments shall be permitted, to the extent permitted in the definition of Pro Forma Basis), as certified by a Responsible Officer; and (D) the Consolidated Leverage Ratio (determined on a Pro Forma Basis) for the immediately preceding prior four fiscal quarters for which financial statements are available (with further pro forma adjustments thereto as provided in clause (C) above) is at least 0.25x lower than the maximum Consolidated Leverage Ratio then permitted with respect to the immediately succeeding fiscal quarter under Section 9.1(a), as certified by a Responsible Officer;
(h) Second Lien Facility Permitted Acquisitions by the Borrower or any Wholly Owned Subsidiary Guarantor with consideration financed solely with the proceeds of a concurrent equity contribution by, or equity issuance by the Borrower to, Holdings that is financed by a concurrent equity contribution by, or equity issuance by Holdings to, Leucadia; provided that, (A) each such Second Lien Facility Permitted Acquisition is of a Person or ongoing business engaged in business activities in which the acquiror is permitted to engage pursuant to Section 9.16; (B) any Person so acquired becomes a Guarantor under this Agreement and the other requirements of Section 6.10 and the Security Documents are satisfied within the applicable time periods set forth therein (provided that Foreign Subsidiaries of Persons so acquired will not be required to become Guarantors); and (C) no Default or Event of Default has occurred or is continuing both before and after giving effect to such Second Lien Facility Permitted Acquisition, as certified by a Responsible Officer;
(i) Investments existing on the date of this Agreement and disclosed on Schedule 9.8 and any Investments resulting from any stock dividend, splits, recapitalizations or conversions relating thereto;
(j) Investments held by the Borrower or any Restricted Subsidiary Guarantor in (i) any of their respective Foreign Subsidiaries and (ii) any joint venture; provided that the Equity Interests in which are acquired after the Closing Date in compliance with amount of all Investments made pursuant to this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were 9.8(j) shall not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidationexceed $15,000,000;
(k) Investments made as a result by the Borrower or any Subsidiary Guarantor in WilTel Aircraft Leasing of amounts necessary or permitted for the conduct by WilTel Aircraft Leasing of the receipt of noncash consideration from any Disposition of any asset in compliance activities permitted under Section 9.16 with Section 6.04;respect to WilTel Aircraft Leasing; and
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made an Investment in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)Swap Agreement permitted under Section 9.12.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Leucadia National Corp)
Investments. None of the Parent, the Obligor Make or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer permit to exist any Investment in any other PersonInvestments, or make any Acquisition, other thanexcept:
(a) Permitted Investmentscash and Cash Equivalents;
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributionsintercompany Investments) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted listed on Schedule 8.02 and Investments in Self-Funded Bonds in connection with the Albuquerque IRB Financing;
(c) to the extent not prohibited by clause (b) above) shall notapplicable Law, at any when madeadvances to officers, directors and employees of the Borrowers and their respective Subsidiaries in an aggregate amount not to exceed $15,000,000 500,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters outstanding, for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the analogous ordinary course of businessbusiness purposes;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(ld) Investments consisting of (i) extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(iiie) notes receivable ofInvestments by members of the Consolidated Group in and to the Domestic Borrowers and their wholly-owned Domestic Subsidiaries;
(f) Investments by the Domestic Borrowers and their wholly-owned Domestic Subsidiaries in and to (i) the Parent Guarantors and (ii) the Foreign Borrowers and their wholly-owned Subsidiaries that are organized under the laws of an Approved Jurisdiction and are Guarantors hereunder, in an aggregate amount not to exceed $5 million;
(g) Investments by the Parent Guarantors and their Subsidiaries (other than the Domestic Borrowers and their Subsidiaries) in and to the Foreign Borrowers and their wholly-owned Subsidiaries that are organized under the laws of an Approved Jurisdiction and are Guarantors hereunder;
(h) Investments by and between the Foreign Borrowers and their wholly-owned Subsidiaries that are organized under the laws of an Approved Jurisdiction and are Guarantors hereunder;
(i) Investments by (i) the Parent Guarantors and (ii) the Foreign Borrowers and their wholly-owned Subsidiaries that are organized under the laws of an Approved Jurisdiction and are Guarantors hereunder, on the one hand, in and to Subsidiaries of the Foreign Borrowers that are either not organized under the laws of an Approved Jurisdiction or are not Guarantors hereunder, or prepaid royalties both, on the other hand, in aggregate principal amount not to exceed $10 million;
(j) Investments by and other extensions between Subsidiaries of credit to, customers and suppliers the Foreign Borrowers that are either not Affiliates organized under the laws of any Group Member and that an Approved Jurisdiction or are not Guarantors hereunder, or both;
(k) Support Obligations permitted by Section 8.03;
(l) Investments made in the ordinary course as a part of businessPermitted Acquisitions;
(m) other Investments of a nature not contemplated in the foregoing clauses of this Section, in an aggregate amount not to exceed $10 million (and, in the case of case of Subsidiaries, additional investment amounts, but only to the extent required to meet minimum capitalization requirements under local law);
(n) Investments consisting of capital contributions (i) by TW to Tempur France Sarl and other acquisitionsTempur Italia Srl, and (ii) by Xxx-Foam ApS and Newco to Subsidiaries of Xxx-Foam ApS; provided that, at the time in each case (x) such Investment capital contributions as received shall be used to pay down intercompany payables owed to Xxx-Foam or acquisition is purchasedNewco within two weeks of receipt of such capital contributions, made or otherwise acquired, and (y) the aggregate amount of such Investment or capital contributions made and not applied pursuant to the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in foregoing clause (gx) of the definition of “Permitted Acquisition”) at any one time shall not exceed an amount equal to $3.5 million in the aggregate; and
(o) Investments not otherwise permitted hereunder, provided that, in any such case, (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom exist on the date of any such Investment and (Bii) at the time each such Investment or acquisition is purchasedConsolidated Group shall be, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately such Investment, in compliance with the financial covenants hereunder after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio thereto on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)Pro Forma Basis.
Appears in 1 contract
Investments. None of the ParentMake any Investments, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other than:
except: (a) Permitted Investments;
(b) Investments existing on the Closing Restatement Date and listed on Schedule 7.02 to the Restated Disclosure Letter; (b) Investments held by the Borrower or such Subsidiary in Subsidiaries, the form of cash equivalents or short-term investments (as would be shown on the Borrower’s balance sheet in accordance with GAAP) and other Investments existing on that are permitted under the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after Borrower’s investment policy as approved by the Closing Date);
Lender from time to time; (c) investments advances made by the Parent, the Obligor and the other Restricted Borrower or any of its Subsidiaries in Equity Interests the ordinary course of such Person’s business to officers, directors and employees of the Borrower or any such Subsidiary for travel, entertainment, relocation and analogous ordinary business purposes; (d) Investments of the Borrower in their Restricted Subsidiaries any Wholly-Owned Subsidiary and Investments of any Wholly-Owned Subsidiary in the Borrower or in another Wholly-Owned Subsidiary; (including as capital contributions e) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to such Restricted Subsidiaries)the extent reasonably necessary in order to prevent or limit loss or in connection with a bankruptcy or reorganization of an account debtor; (f) Guarantees permitted by Section 7.03; (g) Acquisitions which constitute Permitted Acquisitions; (h) Investments arising under Swap Contracts permitted hereunder; (i) Investments consisting of pledges and deposits permitted by clauses (e) and (f) of Section 7.01; (j) Investments of any Person that becomes a Subsidiary after the Restatement Date, provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of Investments exist at the Parent prior to time such investments, Person becomes a Subsidiary and (ii) any such Equity Interests held by Investments were not made in anticipation of such person becoming a Loan Party shall be pledged to Subsidiary; (k) Investments consisting of the extent required non-cash consideration received by the definition of the term “Collateral and Guarantee Requirement” Borrower or any Subsidiary in connection with any Disposition permitted hereunder; and (iiil) other Investments; provided that if at the time of any Permitted Acquisitions under clause (g) of this Section 7.02 or other Investments (“Other Investments”) under clause (l) of this Section 7.02 (and after giving effect thereto) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA Consolidated Net Leverage Ratio as of the last day of the most recently ended four consecutive Fiscal Quarters recent fiscal year of the Borrower for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
6.01 (d) loans or advances made as certified by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments Borrower in the form of Hedge Agreements permitted under Section 6.12;
(gapplicable Compliance Certificate delivered hereunder) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances is equal to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquiredgreater than 1.00:1.00, the aggregate amount of all cash consideration paid by the Borrower and its Subsidiaries in connection with all such Investment or Permitted Acquisitions made in the applicable Limitation Period and all Other Investments made in the applicable Limitation Period, together with the aggregate amount of all Capital Expenditures and Annual Restricted Payments made, declared or paid by the Borrower and its Subsidiaries during such Limitation Period, shall not exceed the Annual Expenditure Limit with respect to such Limitation Period, and provided further that if the Consolidated Net Leverage Ratio as of the last day of the most recent fiscal year of the Borrower for which financial statements have been delivered pursuant to Section 6.01 (as certified by the Borrower in the applicable Compliance Certificate delivered hereunder) is less than 1.00:1.00, then the aggregate amount of all such consideration paid in connection with any Permitted Acquisitions and Other Investments during such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such timeLimitation Period, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) together with the aggregate amount of all Available Amount Capital Expenditures based on usage of and Annual Restricted Payments made, declared or paid by the Available Equity Amount subsequent to the Closing Date as of Borrower and its Subsidiaries during such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchasedLimitation Period, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not may exceed the Available Amount at Annual Expenditure Limit for such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)Limitation Period.
Appears in 1 contract
Samples: Credit Agreement (Copart Inc)
Investments. None Acquire, after the Agreement Date, any Business Unit or Investment or, after such date, permit any Investment to be outstanding, other than Permitted Investments; PROVIDED that Supreme may consummate the Perry Ellis Acquisition as long as each of the Parent, following conditions prxxxxxxx xxx met to the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other than:
Agent's satisfaction: (a) Permitted Investments;
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately exists after giving effect to the consummation of the Perry Ellis Acquisition; (b) the High Yield Debt Offering shall have bxxx xxxxxxxated in accordance with the terms of the High Yield Debt Offering Memorandum pursuant to an indenture in form satisfactory to the Agent; (c) after giving pro forma effect to the consummation of the Perry Ellis Acquisition (and the consummation of the High Yield Debt Oxxxxxxx), xhe Borrowers are in compliance with each of the financial covenants set forth in SECTION 12.1, and the Agent shall have received a certificate and supporting calculations from the Financial Officer evidencing such compliance; (d) on the Perry Ellis Acquisition Date, (i) the Agent shall have received true axx xxxxxxxx executed or conformed copies of the Perry Ellis Acquisition Documents and any amendments thereto; (ii) the Perry Ellis Acquisition Documents shall be in full force and effect anx xx xxxxxxal term or condition thereof shall have been amended, modified or waived after the execution thereof (other than solely to extend the date by which the Perry Ellis Acquisition is required to occur) except with the prior wrxxxxx xxxxxnt of the Agent; (iii) none of the parties to any of the Perry Ellis Acquisition Documents shall have failed to perform any matxxxxx xxxxxation or covenant required by such Investment Perry Ellis Acquisition Document to be performed or acquisitioncomplied with by ix xx xx xxxore the Effective Date; (iv) all material representations and warranties of the Perry Ellis Sellers contained in the Perry Ellis Acquisition Agreement xxx xxx xxher Perry Ellis Acquisitiox Xxxxxxxxx shall be true and correct in all matxxxxx xxxxxcts with the same effect as though made on and as of the Perry Ellis Acquisition Date; (v) all requisite approvals by Governmenxxx Xxxxxxxties and regulatory bodies having jurisdiction over the parties to the Perry Ellis Acquisition Agreement in respect of the Perry Ellis Acquisxxxxx xxxxx have been obtained by such parties, and xx xxxx xxxrovals shall impose any unsatisfied conditions to the Total Adjusted Net Leverage Ratio consummation of the Perry Ellis Acquisition; (vi) the Perry Ellis Acquisition shall have bxxx xxxxxxxated in accordance with xxx xxxxx and provisions of the Perry Ellis Acquisition Agreement and the other Perry Ellis Acquisitiox Xxxxxxxxx, without any amendment or waiver of xxx xxxxxxxl provision thereof; (vii) all opinion letters delivered in connection with the Perry Ellis Acquisition Documents and the transactions contemplated thxxxxx xxxxx be addressed to the Agent, for the benefit of the Lenders, or accompanied by a written authorization from the firm delivering such opinion letter stating that the Agent, for the benefit of the Lenders, may rely on such opinion letter as though it were addressed to it; provided that the Borrowers shall not exceed be required to deliver such opinion letter or written authorization with respect to the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each caseopinion of counsel to the Perry Ellis Sellers to the extent that the Borrowers, as certified by a Responsible Officer after reasonable xxxxxxx, xre unable to obtain the agreement of the Obligor)Perry Ellis Sellers to deliver such opinion or written authorization tx xxx Xxxxx and Lenders; and (viii) the Agent shall have received the consent and acknowledgment of the Perry Ellis Sellers with respect to the Perry Ellis Acquisition Documexxx Xxxxxxxent; (e) the Agent shall have xxxxxxxx x certificate from Supreme's President or Financial Officer, together with such other evidence satisfactory to it, that each of the conditions set forth in CLAUSES (A) through (D) above shall have been satisfied; and (f) Perry Ellis shall have become a Borrower hereunder in accordance with xxx xxxxx xf SECTION 10.11.
Appears in 1 contract
Samples: Loan and Security Agreement (Supreme International Corp)
Investments. None of the ParentMake any Investments, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Permitted InvestmentsInvestments held by the Borrower or such Subsidiary in the form of cash or Cash Equivalents;
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on as of the Closing Date and set forth on in Schedule 6.07 8.02 (but and any modification, replacement, renewal or extension thereof to the extent not involving any additions thereto (including any capital contributions) made after the Closing Datenew cash Investment);
(ci) investments by the Parent, the Obligor and the other Restricted Subsidiaries Investments in Equity Interests in their Restricted Subsidiaries (including as capital contributions any Person that is a Loan Party prior to giving effect to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investmentsInvestment, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required Investments by the definition of Borrower and its Subsidiaries in their respective Subsidiaries outstanding on the term “Collateral and Guarantee Requirement” and date hereof, (iii) the aggregate amount of such investments Investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any in other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties and (iv) Investments by any Loan Party in Foreign Subsidiaries to the extent such Investments are funded solely with the proceeds of the issuance by the Borrower of its Equity Interests;
(d) (i) Investments by any Loan Party in Excluded Subsidiaries that are not-for-profit entities, (ii) Investments by any Loan Party in Canadian Subsidiaries and (iii) Investments by the Loan Parties in Subsidiaries that are not Loan Parties, provided, that the aggregate amount for all Investments made pursuant to this clause (d) shall not exceed $75,000,000 at any one time outstanding; provided, that for purposes of determining compliance with this Section 8.02(d), the aggregate amount of such Investments made pursuant to this Section 8.02(d) shall be subject to the limitation set forth reduced by any dividends, distributions, or any other payments received in clause (c)(iii) abovecash in respect of such Investments;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary Investments consisting of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter extensions of credit in the nature of accounts receivable or letter notes receivable arising from the grant of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed trade credit in the Obligations pursuant ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant extent reasonably necessary in order to the Guaranty Agreement shall not Guarantee any Indebtedness prevent or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) abovelimit loss;
(f) Investments in Guarantees and other Indebtedness permitted by Section 8.03, to the form of Hedge Agreements permitted under Section 6.12extent constituting Investments;
(g) Permitted Acquisitions, the Matrix Acquisition and the Socrates Acquisition;
(h) Any payrollloans and advances to employees, directors and officers of the Loan Parties and Subsidiaries (i) for travel, entertainment, relocation and similar advances analogous ordinary business purposes in an aggregate amount not to directorsexceed $1,500,000 at any time outstanding and (ii) in connection with such Person’s purchase of Equity Interests of the Borrower, officers and employees of in an aggregate amount not to exceed $1,500,000 at any Group Member that are expected at the time outstanding, in each case determined without regard to any write-downs or write-offs of such advances to be treated as advances;
(i) Investments in (i) Swap Contracts permitted under Section 8.03(d) and (ii) any Permitted Bond Hedge Transaction.
(j) bank deposits and prepaid expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(ik) promissory notes and other non-cash consideration received in connection with Dispositions permitted by Section 8.05; provided that such promissory notes and other non-cash consideration have been delivered to the Administrative Agent as collateral along with any necessary stock power or other endorsement reasonably requested by the Administrative Agent;
(l) Investments in the ordinary course of business consisting of endorsements for collection or deposit;
(m) transactions permitted by Section 8.04 to the extent constituting Investments;
(n) Investments (including debt obligations and Equity Interests) received in connection with the bankruptcy or reorganization of any Person and in settlement of obligations of, or settlement of delinquent accounts and other disputes with, customers such Persons arising in the ordinary course of business and suppliers, or in connection upon the foreclosure with the satisfaction or enforcement of claims due or owing respect to any Group Member, secured Investments or other transfer of title with respect to any secured Investment;
(o) Investments in each case the form of certificates of deposit that serve as collateral for letters of credit issued to support reinsurance obligations of Captive Insurance Subsidiaries in the ordinary course of business;
(jp) Investments held by made pursuant to Records Transactions; provided that the aggregate amount of all Investments made pursuant to this clause (p) shall not exceed $12,500,000 at any Restricted Subsidiary one time outstanding;
(q) Investments made in Foreign Subsidiaries in connection with the consummation and financing of the Ingeus Acquisition; provided that the aggregate amount of all such Investments shall not exceed (i) with respect to the initial purchase price paid in connection with the Ingeus Acquisition, $92,300,000 (of which, $24,300,000 shall be paid with Equity Interests in which are acquired after Interests), (ii) with respect to the Closing Date in compliance payment of any Earn Out Obligations required to be paid pursuant to the Ingeus Purchase Agreement, $127,500,000 and (iii) with this Section 6.07 or held by respect to the first year working capital needs of Ingeus and its Subsidiaries, $10,000,000;
(r) Investments of any Person merged into existing at the time such Person becomes a Subsidiary of the Borrower or consolidated consolidates or merges with the Borrower or any Group Member after of its Subsidiaries (including in connection with a Permitted Acquisition) and any modification, replacement, renewal or extension thereof to the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, extent not involving an additional cash Investment so long as such Investments were not made in contemplation of such Person becoming a Subsidiary of the Borrower or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger consolidation or consolidationmerger;
(ks) Investments made as a result (which may take the form of the receipt of noncash consideration from asset contributions) in Joint Ventures in an aggregate amount not exceeding $50,000,000 in any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitionsfiscal year; provided that, in addition, up to 50% of any unused amount for any fiscal year may be carried over to the next succeeding fiscal year, but not to any subsequent fiscal year, and the permitted amount for each fiscal year shall be used in total with or prior to any amount carried over from the previous fiscal year;
(t) other Investments (not including Investments in the Excluded Subsidiaries) by the Loan Parties and their Subsidiaries at any time not to exceed $15,000,000 in the time each aggregate;
(u) other Investments; provided, that, after giving effect to such Investment on a Pro Forma Basis, the Consolidated Net Leverage Ratio shall not exceed 2.75 to 1.0 as of the most recent fiscal quarter for which the Borrower was required to deliver financial statements pursuant to Section 7.01(a) or acquisition is purchased(b);
(v) other Investments; provided, made or otherwise acquiredthat, the aggregate amount of such Investment or Investments outstanding, when taken together with the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) Restricted Payments made pursuant to Section 8.06(n), shall not exceed an amount equal to (i) the Available Equity Amount $30,000,000 at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such any time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor).
Appears in 1 contract
Samples: Credit Agreement (ModivCare Inc)
Investments. None The Borrower will not, nor will it permit any of the Parent, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdits Subsidiaries to, make or otherwise suffer permit to exist remain outstanding any Investment in any other Person, or make any Acquisition, other thanInvestments except:
(a) Investments outstanding on the date hereof and identified in Part B of Schedule III;
(b) operating deposit accounts with banks;
(c) Permitted Investments;
(bd) Investments existing on the Closing Date in Subsidiaries, (including Guarantees permitted under Section 7.01 and other Investments existing on Guarantees) by the Closing Date Borrower and set forth on Schedule 6.07 its Wholly-Owned Subsidiaries in the Borrower and its Wholly-Owned Subsidiaries (but not any additions thereto (including any capital contributionsexcluding Foreign Subsidiaries) made after the Closing Date)date hereof;
(ce) investments Investments by the Parent, the Obligor Borrower and the other Restricted its Wholly-Owned Subsidiaries in Equity Interests in their Restricted Foreign Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that consisting of (i) such Restricted Guarantees by the Borrower of Indebtedness of Foreign Subsidiaries are Restricted Subsidiaries of the Parent prior to such investmentsspecified in Section 7.01(g), (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness Borrower to any Foreign Subsidiary for working capital and other obligations of, Restricted Subsidiaries that are not Loan Parties general corporate purposes (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Foreign Subsidiary shall not Guarantee any Material Indebtedness unless execute and deliver an Intercompany Note evidencing such Restricted Subsidiary has Guaranteed Investments and the Obligations pursuant to Borrower shall comply with the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations requirements of any Loan PartySection 6.09(e)), (iii) capital contributions by the Parent shall not Guarantee Borrower which are made, directly or indirectly, to any Indebtedness or other obligation Foreign Subsidiary with the proceeds of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) an Equity Issuance of the definition of the term “Permitted Debt”Borrower, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are Investments not Loan Parties that is Guaranteed by exceeding U.S.$250,000,000 at any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;one time,
(f) Investments in the form consisting of Hedge Agreements permitted under Section 6.12;
(gi) Permitted Acquisitions;
(h) Any payrollsecurity deposits with utilities, travel, entertainment, relocation lessors and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are other like Persons made in the ordinary course of business;
, (iii) Investments received pledges and deposits made in connection the ordinary course of business in compliance with workers' compensation, unemployment insurance and other social security laws or regulations or (iii) cash deposits to secure the bankruptcy performance of bids, trade contracts, leases, statutory obligations, surety and appeal bonds, performance or reorganization of, or settlement indemnity bonds and other obligations of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Membera like nature, in each case in the ordinary course of business;
(jg) Investments held any Guarantee by any Restricted a Subsidiary of the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date Borrower of (i) Senior Unsecured Indebtedness incurred in compliance with Section 6.06 7.01(c) and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation 7.01(d) and were in existence on the date of such acquisition, merger or consolidation;
(kii) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset Subordinated Indebtedness incurred in compliance with Section 6.047.11 (provided that such Guarantee of Subordinated Indebtedness shall comply with the requirements Section 7.11(b));
(lh) Investments consisting of (iincluding Guarantees permitted under Section 7.01) extensions of trade credit, by the Borrower and its Subsidiaries in Joint Venture Entities (iiand Investments by Joint Venture Entities in other Persons) deposits made in connection with after the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitionsdate hereof; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, that the aggregate amount of such Investment or the aggregate amount of all consideration paid Investments in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) Joint Venture Entities shall not exceed an amount equal U.S.$150,000,000 at any one time (or at any time the Senior Debt Ratio is less than 2.5 to 1 (i) the Available Equity Amount at determination of such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant ratio to this clause (m) subsequent to the Closing Date be calculated as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage last day of the Available Equity Amount subsequent to most recently-ended fiscal quarter of the Closing Date as of Borrower under the assumption that such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) Investment was made at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) beginning of the definition of “Permitted Acquisition”) shall not exceed the Available Amount applicable calculation period), $200,000,000 at such time (in each case, as certified by a Responsible Officer of the Obligorany one time); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor).;
Appears in 1 contract
Investments. None of the Parent, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), Group Companies will hold, make or otherwise suffer to exist acquire, any Investment in any other Person, or make any Acquisition, other thanexcept the following:
(a) Permitted Investments;
(bi) Investments existing on the Closing Date date hereof in Subsidiaries, and other Investments existing Persons which are Subsidiaries on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date)date hereof;
(cii) investments by the ParentHoldings, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries Borrower, Intermediate Holdings or any Subsidiary of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral Borrower may invest in cash and Guarantee Requirement” and Cash Equivalents;
(iii) the aggregate amount Holdings or Intermediate Holdings may acquire and hold obligations of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties one or more officers or other employees of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor Holdings or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom of its Subsidiaries in connection with such officers' or employees' acquisition of Equity Interests of Holdings or Intermediate Holdings, so long as no cash is permitted paid by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor Holdings or any other Restricted Subsidiary of Indebtedness its Subsidiaries to such officers or other obligations of employees in connection with the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result acquisition of any such Person being a joint and several co-applicant with respect to any Letter of Credit obligations or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any cash is immediately reinvested in such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and Equity Interest;
(iv) the aggregate amount Borrower and any Subsidiary of Indebtedness the Borrower may acquire and other obligations of Restricted Subsidiaries that are hold receivables not Loan Parties that is Guaranteed by any Loan Party shall be subject constituting Debt owing to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payrollthem, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made if created or acquired in the ordinary course of business;
(iv) the Borrower and each Subsidiary of the Borrower may acquire and own Investments (including Debt obligations) received in connection with the bankruptcy or reorganization of, or of suppliers and customers and in settlement of delinquent accounts obligations of, and other disputes with, customers and supplierssuppliers arising in the ordinary course of business;
(vi) deposits by the Borrower or any Subsidiary of the Borrower made in the ordinary course of business consistent with past practices to secure the performance of leases shall be permitted;
(vii) Holdings may make equity contributions to the capital of Intermediate Holdings which may make equity contributions to the capital of the Borrower and both Holdings and Intermediate Holdings may incur Guaranty Obligations permitted under Section 7.01(viii);
(viii) Holdings and Intermediate Holdings may hold the (i) Trust Common Securities and (ii) promissory notes issued by the Borrower and Intermediate Holdings (as applicable);
(ix) the Borrower may make Investments in any of its Wholly-Owned Domestic Subsidiaries and any Subsidiary of the Borrower may make Investments in the Borrower or any Wholly-Owned Domestic Subsidiary of the Borrower;
(x) the Borrower and its Subsidiaries may make Investments in any Foreign Subsidiary organized and operating in Canada or Mexico or any non-Wholly-Owned Domestic Subsidiary of the Borrower (A) in the case of Investments by the Borrower or any Wholly-Owned Domestic Subsidiary of the Borrower, in an aggregate amount (determined without regard to any write-downs or write-offs of any such Investments constituting Debt) and together with the fair market value of all assets transferred pursuant to Section 7.05(viii)) at any one time outstanding not exceeding $5,750,000 and (B) to the extent such Investments arise from the sale of inventory in the ordinary course of business by the Borrower or such Subsidiary to such Foreign Subsidiary or non-Wholly-Owned Domestic Subsidiary for resale by such Foreign Subsidiary or non-Wholly-Owned Domestic Subsidiary (including any such Investments resulting from the extension of the payment terms with respect to such sales);
(xi) so long as no Default or Event of Default is then in existence or would otherwise arise therefrom, the Borrower may make Investments in Holdings and Intermediate Holdings provided that (A) all proceeds thereof are applied by Holdings or passed on by Intermediate Holdings to Holdings solely for the purposes of Section 7.08(d); and (B) no such Investment shall be made if an interest payment in respect of the Junior Debentures could not, but for such Investment, be made in accordance with Section 7.08(d);
(xii) the Borrower and its Subsidiaries may make transfers of assets to the Borrower and its Subsidiaries in accordance with Section 7.05(viii) and (ix) and in connection with mergers and consolidations permitted under Section 7.04;
(xiii) the satisfaction Borrower and its Subsidiaries may purchase inventory, machinery, equipment and other assets in the ordinary course of business;
(xiv) the Borrower and its Subsidiaries may make expenditures in respect of Permitted Business Acquisitions;
(xv) the Borrower or enforcement any of claims due or owing its Subsidiaries may make loans and advances to any Group Memberemployees of Holdings and its Subsidiaries for moving and travel and other similar expenses, in each case in the ordinary course of business, in an aggregate principal amount not to exceed $300,000 at any one time outstanding (determined without regard to any write-downs or write-offs of such loans and advances);
(jxvi) the Borrower or any of its Subsidiaries may make loans and advances to Holdings and Intermediate Holdings and Intermediate Holdings may make loans to Holdings for the purposes and in the amounts necessary to make payments described in Section 7.07;
(xvii) Holdings and Intermediate Holdings may redeem or repurchase Equity Interests to the extent permitted by Section 7.07;
(xviii) the Borrower and its Subsidiaries may make Investments in Permitted Joint Ventures in an aggregate amount (determined without regard to any write-downs or write-offs of any such Investments constituting Debt) at any one time outstanding not exceeding $5,750,000;
(xix) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence existing on the date of such acquisition, merger or consolidationhereof and identified on Schedule 7.06;
(kxx) Investments made as a result arising out of the receipt by the Borrower or any of its Subsidiaries of noncash consideration from any Disposition for the sale of any asset in compliance with assets permitted under Section 6.047.05;
(lxxi) Investments consisting of (i) extensions of trade credit, (ii) resulting from pledges and deposits made specifically referred to in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor)Section 7.02; and
(oxxii) other Investments and other acquisitionsnot otherwise permitted by this Section 7.06 in an aggregate amount (determined without regard to any write-downs or write-offs of any such Investments constituting Debt but excluding any portion thereof funded with proceeds of an Qualifying Equity Issuance) at any time outstanding not exceeding $11,500,000 in the aggregate; provided that (A) no Specified Default Group Company may make or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to own any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)Margin Stock.
Appears in 1 contract
Investments. None No Credit Party shall, nor shall it permit any of the Parent, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdits Subsidiaries to, make or otherwise suffer to exist own any Investment in any other Person, or make including without limitation any AcquisitionJoint Venture, other thanexcept:
(a) Permitted Investments, including Investments that constituted Permitted Investments when made but, for reasons not relating to the Company, no longer constitute Permitted Investments; provided that prior to the HM Release Date the aggregate principal amount of Cash and Permitted Investments owned by Subsidiaries of Company (including Excluded Subsidiaries) that are not Guarantors shall not exceed $15,000,000 at any time;
(b) Investments existing on as of the Closing Date in Subsidiaries, any Subsidiary and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date)Date in Domestic Subsidiaries that are Guarantor Subsidiaries and Investments in Company;
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged intercompany loans to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to under Section 5.04(a) or 5.04(b) prior to the date of such Investment6.1;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is Consolidated Capital Expenditures permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) aboveSection 6.7(d);
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall loans and advances to employees of Holding and its Subsidiaries made in the ordinary course of business in an aggregate principal amount not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed to exceed $5,000,000 in the Obligations pursuant aggregate (calculated without regard to the Guaranty Agreement, write-downs or write-offs thereof) and (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant advances of payroll payments and expenses to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(if) Investments received made in connection with the bankruptcy or reorganization of, or settlement of delinquent Permitted Business Acquisitions permitted pursuant to Section 6.8;
(g) Investments described in Schedule 6.6;
(i) accounts receivable arising and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case trade credit granted in the ordinary course of business;
(j) Investments held by business and any Restricted Subsidiary Securities received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the Equity Interests extent reasonably necessary in which are acquired after the Closing Date in compliance with this Section 6.07 order to prevent or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 limit loss and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties prepayments and other extensions of credit to, customers and credits to suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of businessbusiness consistent with the past practices of Company and its Subsidiaries;
(i) prior to the HM Release Date, Company may make Investments in Wholly-Owned Subsidiaries that are not Guarantors; provided that the net (after giving effect to returns thereon) aggregate amount of all such Investments does not exceed $60,000,000 at any time; provided that, to the extent such Investments are not funded with the proceeds of Designated Capital Contribution, all such Investments shall be made in the form of intercompany loans; provided further that, the aggregate amount of Investments otherwise permitted by this clause (i) shall be reduced by the amount of any consideration paid in connection with a Permitted Business Acquisition in which an entity is acquired and not merged with and into Company;
(j) [Reserved]
(k) Company may make other Investments (including Investments in Excluded Subsidiaries and Foreign Subsidiaries) in an aggregate amount not to exceed $25,000,000 (after giving effect to returns thereon); provided that, to the extent any such Investment is not funded with the proceeds of a Designated Capital Contribution, such Investment shall be made as an intercompany loan; provided further that the aggregate amount of such Investments made to Excluded Subsidiaries shall not exceed $10,000,000 after giving effect for returns thereon;
(l) Company and its Subsidiaries may enter into and perform their obligations under Hedge Agreements and Other Hedge Agreements entered into in the ordinary course of business and so long as any such Hedge Agreement or Other Hedge Agreement is not speculative in nature;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and continuing, additional Investments made with (Bi) the then available Cumulative Capital Contribution Amount, and/or (ii) the then available Cumulative Retained Excess Cash Flow Amount, but only to the extent that the Company so elects in a written notice delivered to Administrative Agent at the time each such Investment is made;
(n) Investments arising out of the receipt by Company or acquisition any Subsidiary of Company of non-cash consideration with respect to sales of assets permitted under Section 6.8; provided that such consideration (if the stated amount or value thereof is purchased, made or otherwise acquired, in excess of $1,000,000) is pledged upon receipt pursuant to the aggregate amount of such Investment Pledge and Security and Collateral Trust Agreement or the aggregate amount Holding Pledge and Security Agreement to the extent required thereby;
(o) Investments resulting from pledges and deposits referred to in Section 6.2;
(p) Holding shall be permitted to contribute the proceeds of all consideration paid in connection with such acquisition Designated Capital Contributions to Company;
(determined as set forth in clause (gq) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified Investments expressly permitted by a Responsible Officer of the Obligor)Section 6.8; and
(or) other Investments constituting customary capitalization of a Receivables Subsidiary in amounts and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect on terms reasonably acceptable to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)Administrative Agent.
Appears in 1 contract
Investments. None of the ParentMake or hold any Investments, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Permitted InvestmentsInvestments held by the Borrowers and their Restricted Subsidiaries in the form of cash and Cash Equivalents;
(b) Investments existing on advances to officers, directors and employees of the Closing Date Borrowers and their Restricted Subsidiaries in Subsidiariesan aggregate amount not to exceed $1,000,000 at any time outstanding, for travel, entertainment, relocation and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date)analogous ordinary business purposes;
(c) investments (i) Investments by the Parent, the Obligor Borrowers and the other their Restricted Subsidiaries in Equity Interests in their respective Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of outstanding on the Parent prior to such investmentsdate hereofRestatement Date, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required additional Investments by the definition of the term “Collateral Borrowers - 103 - NAI-1535672020v11535672020v8 and Guarantee Requirement” their Restricted Subsidiaries in Loan Parties and (iii) the aggregate amount of such investments additional Investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any in other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to Parties;
(d) Investments consisting of extensions of credit in the limitation set forth nature of accounts receivable or notes receivable arising from the grant of trade credit in clause (c)(iii) abovethe ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) aboveSection 7.02;
(f) Investments existing on the date hereofRestatement Date (other than those referred to in the form of Hedge Agreements permitted under Section 6.127.03(c)(i)) and set forth on Schedule 7.03;
(g) Permitted Acquisitions;
(h) Any payrollInvestments consisting of debt securities as partial consideration for the Disposition of assets to the extent permitted by Section 7.05(f);
(i) (i) Investments by the Borrowers and their Restricted Subsidiaries in joint ventures, travel, entertainment, relocation (ii) additional Investments by the Borrowers and similar advances to directors, officers and employees of any Group Member their Restricted Subsidiaries that are expected Loan Parties in Restricted Subsidiaries that are not Loan Parties and (iii) additional Investments after the date hereofRestatement Date by the Borrowers and their Restricted Subsidiaries in Unrestricted Subsidiaries; provided that at the time of making any such advances Investment the then aggregate outstanding amount of all Investments made in reliance on this subsection (i), together with the then aggregate outstanding amount of Investments in respect of Permitted Acquisitions and Permitted Drop Downs, in each case resulting in the acquisition by the Borrowers and their Restricted Subsidiaries of Persons that do not become Loan Parties or constituting purchases of assets that are acquired directly by Restricted Subsidiaries that are not Loan Parties, shall not exceed an amount equal to (x) for the period beginning on the Amendment No. 2 Effective Date and ending on March 31, 2022, $95,000,000 or (y) for any other period, the greater of (A) $75,000,000105,000,000 and (B) 11.75% of Consolidated Net Tangible Assets in the aggregate (measured at the time such Investment is made); provided further that, the amount of any Investment in an Unrestricted Subsidiary deemed outstanding under the preceding clauses (x) and (y) shall be treated as expenses reduced by any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash by a Borrower or any Restricted Subsidiary in respect of such Group Member for accounting purposes Investment;
(j) Investments to the extent made with (x) Equity Interests of the Partnership or (y) the proceeds of (i) contributions to the capital of the Partnership or (ii) issuances of Qualified Equity Interests of the Partnership;
(k) the Initial Drop Down and any subsequent Permitted Drop Down[reserved];
(l) Investments constituting a Permitted Like-Kind Exchange;
(m) ownership of the UST Systems (as defined in the Getty Lease) subject to an option to purchase in favor of Getty under the Getty Lease;
(n) time deposits with Team Capital Bank in an amount not to exceed $10,000,000; provided, however, such funds shall represent escrowed environmental reserves;[reserved];
(o) so long as no Default has occurred and is continuing or would result from such Investment, other Investments not exceeding the greater of (i) $50,000,00070,000,000 and (ii) 7.757.50% of Consolidated Net Tangible Assets in the aggregate in any fiscal year of the Partnership; provided, that are the aggregate amount of Investments made in Unrestricted Subsidiaries pursuant to this subsection (o) shall not exceed - 104 - NAI-1535672020v11535672020v8 the greater of (i) $25,000,00035,000,000 and (ii) 3.875% of Consolidated Net Tangible Assets; provided further that, the amount of any Investment in an Unrestricted Subsidiary deemed outstanding under the first proviso of this subsection (o) shall be reduced by any dividend, distribution, interest payment, return of capital, repayment or other amount received in cash by a Borrower or any Restricted Subsidiary in respect of such Investment;
(p) real property owned by any Guarantor subject to ROFRs and Repurchase Options;
(q) Investments (including debt obligations and Equity Interests) 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 or upon the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(r) advances of payroll payments to employees in the ordinary course of business;
(is) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any a Restricted Subsidiary the Equity Interests in which are acquired after the Closing ClosingRestatement Date in compliance with this Section 6.07 or held by any of a Person merged into or consolidated with any Group Member Restricted Subsidiary after the Closing ClosingRestatement Date in compliance with Section 6.06 and this Section 6.07or that otherwise becomes a Restricted Subsidiary, in each case, so long as pursuant to a transaction permitted hereunder, to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(kt) Investments made as a result of the receipt of noncash consideration from receivables owing to either Borrower or any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade creditRestricted Subsidiary, (ii) deposits made in connection with the purchase of goods if created or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made acquired in the ordinary course of business;
(mu) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) for utilities, security deposits, leases and similar prepaid expenses incurred in the aggregate amount ordinary course of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time business and (B) trade accounts created, or prepaid expenses accrued, in the aggregate amount ordinary course of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such timebusiness;
(nv) other non-cash Investments in connection with bona fide tax planning and other acquisitionsreorganization activities; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisitionnon-cash Investments, the Total Adjusted Net Leverage Ratio shall security interests of the Lenders in the Collateral, taken as a whole, and the Guarantees by the Loan Parties under the Guaranty, would not exceed be materially impaired;
(w) to the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (extent that they constitute Investments, purchases and acquisitions of inventory, supplies, materials or equipment or purchases, acquisitions, licenses or leases of other assets, Intellectual Property, or other rights, in each casecase in the ordinary course of business; and
(x) Investments consisting of Indebtedness, as certified by a Responsible Officer of the Obligor)Liens, fundamental changes, Dispositions and Restricted Payments permitted under Sections 7.02, 7.01, 7.04, 7.05 and 7.06, respectively.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (CrossAmerica Partners LP)
Investments. None of the ParentExcept for Permitted Investments, the Obligor directly or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdindirectly, make or otherwise suffer to exist acquire any Investment or incur any liabilities (including contingent obligations) for or in connection with any Investment; provided, however, that Borrower and its Subsidiaries shall not have Permitted Investments (other Personthan in the Cash Management Accounts) in deposit accounts or Securities Accounts in excess of $500,000 outstanding at any one time in the aggregate (excluding the Excluded Collateral) unless Borrower or its Subsidiary, as applicable, and the applicable securities intermediary or make bank have entered into Control Agreements governing such Permitted Investments, that are satisfactory to Agent in its Permitted Discretion, to perfect (and further establish) the Agent's Liens in such Permitted Investments. Notwithstanding the foregoing, Borrower shall be permitted to purchase accounts (the "ORBIMAGE Accounts") for the aggregate purchase price not to exceed $10,000,000 pursuant to the ORBIMAGE Purchase Agreement, as such agreement exists on the date hereof or as amended with the consent of the Required Lenders or as amended in a manner that is not adverse to Borrower, any AcquisitionSubsidiary of Borrower, other thanAgent or any Lender, if all of the following conditions are satisfied on each date on which Borrower purchases such accounts:
(a) Permitted Investments;effective as of the closing date of any purchase of ORBIMAGE Accounts, Agent, for the benefit of the Lender Group, shall have received a valid first priority Lien upon such ORBIMAGE Accounts purchased by Borrower on such closing date; and
(b) Investments existing on Agent shall have completed an audit of the Closing Date in SubsidiariesORBIMAGE Accounts, which audit Agent agrees to complete within thirty (30) days following Borrower's request, and other Investments existing on pursuant to the Closing Date and results of such audit, Agent shall have established the ORBIMAGE Reserve; provided, however that if Agent has not completed its audit at the time the purchase is to be consummated, the condition set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by this clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as be deemed to be satisfied by the establishment of the last day of ORBIMAGE Reserve at the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the maximum amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties $10,000,000, which amount shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees adjusted upon completion by the Parent, the Obligor or any other Restricted Subsidiary Agent of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)its audit.
Appears in 1 contract
Samples: Loan and Security Agreement (Orbital Sciences Corp /De/)
Investments. None Advances. Make or commit to make any advance, loan or extension of the Parentcredit or capital contribution to, the Obligor or purchase any stock, bonds, notes, debentures or other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Personsecurities of, or make any Acquisitionother investment in, other thanany Person except that:
(a1) Permitted Investmentsthe Company and its Subsidiaries may acquire and hold accounts receivable owing to any of them;
(b2) Investments existing on the Closing Date Company and its Subsidiaries may make loans and advances in the ordinary course of business to their respective Affiliates, Subsidiaries, officers, and other Investments employees so long as the aggregate principal amount thereof at any one time outstanding (determined without regard to any write-downs or write-offs of such loans and advances) shall not exceed $100,000;
(3) the Company and any Subsidiary all of whose equity interests are owned by the Company or other Subsidiaries all of whose equity interests are owned by the Company (each a "Wholly Owned Subsidiary") may make intercompany loans to the Company or any Wholly Owned Subsidiary organized under the laws of the United States or a subdivision thereof (a "Domestic Wholly Owned Subsidiary"); provided that any promissory notes evidencing such intercompany loans made by the Company or a Wholly Owned Subsidiary shall be pledged (and delivered) by the Company or such Wholly Owned Subsidiary as Collateral pursuant to the Security Documents;
(4) the Company and its Subsidiaries may hold the investments in their respective Subsidiaries existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after may make additional investments in Domestic Wholly Owned Subsidiaries following the Closing Date);
(c5) investments by the Parentsubject to Paragraph 9(i) below, the Obligor Company and its Subsidiaries may establish Subsidiaries;
(6) the other Restricted Company and its Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged may sell or transfer assets to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (bParagraph 9(c) aboveabove or 9(g) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investmentbelow;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i7) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” Company and (ii) the amount of such loans and advances made by the Loan Parties to Restricted its Subsidiaries that are not Loan Parties shall be subject to the limitation set forth may make investments in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)Cash Equivalents.
Appears in 1 contract
Samples: Credit Agreement (Seracare Inc)
Investments. None No Credit Party shall, nor shall it permit any of the Parent, the Obligor or any other its Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdSubsidiaries to, make or otherwise suffer to exist hold any Investment in any other Personthan the following (collectively, or make any Acquisition, other than:the “Permitted Investments”):
(a) Permitted InvestmentsInvestments in the form of trade credit to customers of a Restricted Entity arising in the ordinary course of business and represented by accounts from such customers;
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date)Liquid Investments;
(c) investments Investments made prior to the Effective Date as specified in the attached Schedule 6.3 and Investments in Subsidiaries existing on the Effective Date set forth on Section 4.11;
(d) Investments in any Unrestricted Subsidiary and Foreign Subsidiaries by the Parent, the Obligor and the other any Credit Party or Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries)Subsidiary; provided that that, (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and Investments permitted by under this clause (bd) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater outstanding does not exceed $25,000,000 (other than as a result of (x) $20,000,000 appreciation and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior other than to the date of such Investment;
(d) loans or advances made by the Parentextent funded with Equity Issuance Proceeds), the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances if any Restricted Payments made by Unrestricted Subsidiaries are included in the Loan Parties to calculation of EBITDA of any period for any purpose under this Agreement, then no Investments may be made by any Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth Entity in such applicable Unrestricted Subsidiary during such period (under this clause (c)(iiid) aboveor otherwise) unless Borrower would otherwise be in compliance with the applicable covenant without taking into account such Restricted Payments from the Unrestricted Subsidiaries;
(e) Guarantees Investments by the Parent, the Obligor or any Credit Party to any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements Permitted Acquisitions (including Investments held by any Restricted Subsidiary on the date such Person becomes a Restricted Subsidiary after the Effective Date but only to the extent that (i) such Investment is in existence at the time such Person becomes a Restricted Subsidiary and were not created in anticipation thereof and (ii) such Investment does not thereafter increase in amount (other than by appreciation and it being understood that this clause (ii) shall not limit an increase in such Investment that is permitted under another clause of this Section 6.126.3); provided that, such Permitted Acquisition otherwise complies with this Agreement, including Section 5.7 and Section 6.4(b);
(g) Permitted Acquisitionscreation of any additional Restricted Subsidiaries of Parent in compliance with Sections 5.6 and 5.7;
(h) Any payrollcreation of any Unrestricted Subsidiaries in compliance with Section 5.7; provided that, travel, entertainment, relocation and similar the initial capitalization thereof is permitted under clause (d) or clause (o) hereof;
(i) loans or advances to directors, officers and employees of any Group Member Restricted Entity for expenses or other payments incident to such Person’s employment or association with any Restricted Entity; provided that are expected at the time aggregate outstanding amount of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of businessloans shall not exceed $3,500,000;
(ij) the Transactions contemplated by this Agreement;
(k) Investments (including debt obligations and Equity Interests) and other assets received in connection with the bankruptcy or reorganization of suppliers and customers or in settlement or delinquent obligations of, or settlement of delinquent accounts and other disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case suppliers arising in the ordinary course of business;
(j) Investments held by business or received upon the foreclosure with respect to any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance secured Investment or other transfer of title with this Section 6.07 or held by respect to any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04secured Investment;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course form of businessmergers, amalgamations and (iii) notes receivable ofconsolidations of Restricted Entities in compliance with Section 6.7(a); provided that, or prepaid royalties and other extensions of credit toif such Investment involves a Subsidiary, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of businesssuch Investment otherwise complies with this Agreement, including Section 5.7;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such timeCapital Expenditures;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the in an aggregate amount not to exceed $20,000,000 at any time outstanding (other than as a result of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligorappreciation); and
(o) other Investments and (other acquisitions; provided that (Athan Acquisitions) no Specified Default so long as the Payment Conditions are satisfied. Any Investments permitted above consisting of loans or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect advances by any Unrestricted Subsidiary to any such Investment Credit Party or acquisitionany Restricted Subsidiary to shall be subject to the condition that the applicable Unrestricted Subsidiaries, Credit Parties, and Restricted Subsidiaries are parties to the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)Intercompany Subordination Agreement.
Appears in 1 contract
Investments. None The Borrower shall not, and shall not permit any Restricted Subsidiary of the ParentBorrower to, make any Investment, except that the Obligor or Borrower and any other Restricted Subsidiary shall of the Borrower may purchase or otherwise acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanand own:
(a) Permitted InvestmentsDomestic Cash and Cash Equivalents, deposit accounts and Foreign Cash and Cash Equivalents (provided that the Borrower and its Domestic Subsidiaries may not purchase, acquire or own any Foreign Cash and Cash Equivalents);
(b) Investments existing Accounts receivable that arise in the ordinary course of business and are payable on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date)standard terms;
(c) investments Investments in existence on the Agreement Date which are described on SCHEDULE 5 hereto;
(d) Investments which are Acquisitions permitted pursuant to SECTION 7.6 hereof;
(e) Investments in the form of Interest Hedge Agreements permitted by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries SECTION 7.1(e) hereof;
(including as capital contributions to such Restricted Subsidiaries); provided that (if) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties Net Investments in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations expenditures in respect of, Restricted Acquisitions of Unrestricted Subsidiaries that are and joint ventures in an aggregate amount after the Agreement Date not Loan Parties to exceed (excluding all calculated for such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) Investment or 5.04(b) expenditure immediately prior to the date of such Investment;
(dInvestment or Acquisition) loans or advances made by 5% of the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that lesser of (i) the Indebtedness resulting therefrom is permitted by clause (e) consolidated total assets of the definition of “Permitted Debt” Borrowers and its Subsidiaries or (ii) EBITDA for the amount immediately preceding four fiscal quarters (which for purposes of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties this section shall be subject to calculated for the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint Borrower and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guarantyits Subsidiaries); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted AcquisitionsInvestments in the Borrower and Investments in Restricted Subsidiaries of the Borrower (i) which have executed a Subsidiary Guaranty and (ii) which have delivered to the Lenders such board resolutions, officer's certificates, corporate and other documents and opinions of counsel as the Administrative Agent shall reasonably request;
(h) Any payrollNet Investments in, traveland expenditures in respect of, entertainment, relocation and similar advances Foreign Restricted Subsidiaries in an aggregate amount after the Agreement Date not to directors, officers and employees of any Group Member that are expected at exceed (calculated for such Investment or expenditure immediately prior to the time date of such advances Investment or Acquisition) the lesser of (i) 17% of consolidated total assets of the Borrower and its Subsidiaries or (ii) 20% of EBITDA for the immediately preceding four fiscal quarters (which for purposes of this clause (h) shall be calculated for the Borrower and its Subsidiaries);
(i) Investments consisting of non-cash consideration received in connection with a sale of assets permitted by SECTION 7.5 not to be treated as expenses exceed 25% (on a sale-by-sale basis) of the consideration for any such Group Member for accounting purposes sale;
(j) Investments arising from transactions by the Borrower or any of its Restricted Subsidiaries with customers or suppliers in the ordinary course of business, including prepayments and that are other credits made in the ordinary course of business;
(i) Investments , endorsements of negotiable instruments, debt obligations and other investments received in connection with the bankruptcy or reorganization of, or of customers and suppliers and in settlement of delinquent accounts obligations of, and other disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04which are Capital Expenditures;
(l) Investments consisting which are loans to management, officers and employees of the Borrower or any of its Subsidiaries, the proceeds of which are used solely to purchase Equity Interests of the Borrower;
(im) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, Investments in the ordinary course form of business, the repurchase of common Equity Interests of the Borrower pursuant to the Netcom Recapitalization;
(n) Investments which are pledges and deposits permitted under SECTION 7.2 hereof;
(iiio) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that Investments otherwise permitted under SECTION 7.7 hereof;
(p) Investments which are not Affiliates of any Group Member and that are deposits made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at business consistent with past practices to secure the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount performance of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor)leases; and
(oq) other Other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) not to exceed $250,000 in the aggregate amount outstanding at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)one time.
Appears in 1 contract
Investments. None of Prior to the ParentAcquisition Closing Date, the Obligor or Borrower will not, and will not permit any other Restricted Subsidiary, and, after the Acquisition Closing Date, Parent will not, and will not permit any Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdto, make or otherwise suffer to exist any Investment in any other PersonInvestments, or make any Acquisition, other thanexcept:
(a) Permitted InvestmentsInvestments in cash and Cash Equivalents and assets that were Cash Equivalents when such Investment was made;
(b) (i) the Transactions or Investments otherwise made in accordance with or as contemplated by the Merger Agreement and the Separation Agreement and (ii) Permitted Acquisitions; provided that Acquisitions of Persons acquired by Loan Parties pursuant to this clause (b)(ii) that do not or have not become Guarantors in accordance with Section 5.11 or Section 5.12 (it being understood that an Acquisition of a Person and its subsidiaries shall be deemed an acquisition of Persons that become Guarantors for this purpose if the Persons so acquired that do become Guarantors constitute more than 50% of the Consolidated EBITDA of such Person and its subsidiaries) after the consummation of such Acquisition that are made in reliance on this clause (b)(ii) shall not exceed the greater of $225,000,000 and 15% of Consolidated EBITDA computed on a Pro Forma Basis as of the Applicable Date of Determination;
(c) (i) Investments existing on the Closing Date in SubsidiariesEffective Date, and other (ii) Investments existing contemplated on the Closing Effective Date and set forth on Schedule 6.07 6.04(c), and (ii) Investments consisting of any modification, replacement, renewal, reinvestment or extension of any such Investment; provided that the amount of any Investment permitted pursuant to this Section 6.04(c) is not increased from the amount of such Investment on the Effective Date except pursuant to the terms of such Investment (including in respect of any unused commitment), plus any accrued but not any additions thereto unpaid interest (including any capital contributionsportion thereof which is payable in kind in accordance with the terms of such modified, extended, renewed or replaced Investment) and premium payable by the terms of such Indebtedness thereon and fees and expenses associated therewith as of the Effective Date or as otherwise permitted by this Section 6.04;
(d) (i) Investments between and among any of the Loan Parties; and (ii) Investments by any Loan Party to any Restricted Subsidiary that is not a Loan Party provided that such Investments made after the Closing Date);
Effective Date pursuant to this clause (cd)(ii) investments by shall (x) constitute loans and advances made in the Parentordinary course of business or (y) constitute other Investments that do not at any one time exceed the greater of (A) $225,000,000 and (B) 15% of Consolidated EBITDA, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior Applicable Date of Determination after giving effect on a Pro Forma Basis to the proposed Investment (it being understood that for purposes of calculating amounts outstanding pursuant to this clause (d)(ii), such investments, amount shall be calculated on a net basis (ii) without duplication of the reduction of the amount of any such Equity Interests held by a Loan Party shall be pledged Investment in respect of Returns on such Investment pursuant to the extent required by the definition of the term “Collateral and Guarantee Requirement” and Investment”) giving effect to all Investments (iiiI) the aggregate amount of such investments by in the Loan Parties in, by and loans and advances by Returns to the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, from Restricted Subsidiaries that are not Loan Parties and (excluding all II) in the Loan Parties by Joint Ventures and Unrestricted Subsidiaries); provided, further, that to the extent that any such investments, loans, advances and Guarantees existing on the date hereof and permitted by Investments under this clause (bd) aboveconstitute loans or advances made to any Loan Party, such loans or advances shall be subordinated in right of payment to the Obligations upon the occurrence of an Event of Default pursuant to Section 7.01(h) shall not, or (i) or upon the acceleration of the Obligations pursuant to Section 7.01 after the occurrence of any other Event of Default;
(e) Investments made by the Parent or any Restricted Subsidiary in any Joint Venture or any Unrestricted Subsidiary in an aggregate amount not to exceed at any when made, exceed $15,000,000 at any one time outstandingthe outstanding the greater of (xA) $20,000,000 150,000,000 and (yB) 1510% of IKE-Adjusted Consolidated EBITDA as of the last day Applicable Date of the most recently ended four consecutive Fiscal Quarters Determination after giving effect on a Pro Forma Basis to each proposed Investment (it being understood that for which financial statements have been delivered purposes of calculating amounts outstanding pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by this clause (e) ), such amount shall be calculated on a net basis (without duplication of the reduction of the amount of any such Investment in respect of Returns on such Investment pursuant to the definition of “Permitted Debt” and Investment”) giving effect to all Investments (iiI) the amount of such loans and advances made by in the Loan Parties by and Returns to the Loan Parties from Restricted Subsidiaries that are not Loan Parties shall be subject to and in the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) aboveJoint Ventures and Unrestricted Subsidiaries);
(f) Investments made by any Restricted Subsidiary that is not a Loan Party in the form Parent or any Restricted Subsidiary; provided that to the extent that any such Investments constitute loans or advances made to any Loan Party, such loans or advances shall be subordinated in right of Hedge Agreements permitted under payment to the Obligations upon the occurrence of an Event of Default pursuant to Section 6.127.01(h) or (i) or upon the acceleration of the Obligations pursuant to Section 7.01 after the occurrence of any other Event of Default;
(g) Permitted Acquisitions[Reserved];
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or upon the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(i) Investments in respect of Swap Agreements not entered into for speculative purposes, Cash Management Agreements and Cash Management Services;
(j) Investments of any Person existing at the time such Person becomes a Restricted Subsidiary or consolidates, amalgamates or merges with the Parent or any Restricted 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 Restricted Subsidiary or such consolidation or merger;
(k) Investments resulting from pledges or deposits described in clause (c) or (d) of the definition of the term “Permitted Encumbrance”;
(l) Investments received in connection with the satisfaction disposition of any asset in accordance with and to the extent permitted by Section 6.05 (other than Section 6.05(d));
(m) receivables or enforcement of claims due or other trade payables owing to the Parent or any Group MemberRestricted 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 the Parent or such Restricted Subsidiary deems reasonable under the circumstances;
(n) Investments resulting from Liens permitted under Section 6.02;
(o) Investments in deposit accounts and securities accounts opened in the ordinary course of business;
(p) Investments in connection with Intercompany License Agreements;
(q) other Investments (including those of the type otherwise described herein) made after the Effective Date in an aggregate amount at any time outstanding not to exceed the greater of (x) $225,000,000 and (y) 15% of Consolidated EBITDA as of the Applicable Date of Determination after giving effect on a Pro Forma Basis to each such proposed Investment pursuant to this clause (q);
(r) Investments consisting of xxxx xxxxxxx money deposits in connection with a Permitted Acquisition or other Investment permitted hereunder;
(s) Investments solely to the extent such Investments reflect an increase in the value of Investments otherwise permitted under this Section 6.04;
(t) the acquisition of additional Equity Interests of Restricted Subsidiaries from minority shareholders (it being understood that to the extent that any Restricted Subsidiary that is not a Loan Party is acquiring Equity Interests from minority shareholders then this clause (t) shall not in and of itself create, or increase the capacity under, any basket for Investments by Loan Parties in any Restricted Subsidiary that is not a Loan Party);
(u) Investments consisting of endorsements for collection or deposit in the ordinary course of business;
(v) (a) Investments in any Receivables Facility or any Securitization Subsidiary in order to effectuate a Qualified Securitization Financing, including the ownership of Equity Interests in such Securitization Subsidiary and (b) distributions or payments of Securitization Fees and purchases of Securitization Assets or Receivables Assets pursuant to a Securitization Repurchase Obligation in connection with a Qualified Securitization Financing or a Receivables Facility;
(w) Investments in Equity Interests in any Subsidiary resulting from any sale, transfer or other disposition by the Parent or any Subsidiary permitted by Section 6.05, including as a result of any contribution from any parent or distribution to any Subsidiary of such Equity Interests;
(x) contributions to a “rabbi” trust for the benefit of employees or other grantor trust subject to claims of creditors in the case of a bankruptcy of the Borrower;
(y) loans or advances to officers, partners, directors, consultants and employees of the Parent or any Restricted Subsidiary for (A) relocation, entertainment, travel expenses, drawing accounts and similar expenditures and (B) for other purposes in the aggregate amount not to exceed $15,000,000 at any time outstanding;
(z) other Investments (including those of the type otherwise referred to herein) in an aggregate amount not to exceed the Available Amount;
(aa) Investments consisting of or resulting from Indebtedness, Liens, Restricted Payments, fundamental changes and dispositions permitted under Section 6.01 (other than Section 6.01(a)(ii) and (a)(iii)), Section 6.02, Section 6.03 (other than Section 6.03(a)(vi) and (b)(viii)), Section 6.05 (other than Section 6.05(b)) and Section 6.08 (other than Section 6.08(xi)), respectively;
(bb) Loans repurchased by the Parent or a Restricted Subsidiary pursuant to and in accordance with Section 2.11(i) or Section 9.04, so long as such Loans are immediately cancelled;
(cc) cash or property distributed from any Restricted Subsidiary that is not a Loan Party (i) may be contributed to other Restricted Subsidiaries that are not Loan Parties, and (ii) may pass through the Parent and/or any intermediate Restricted Subsidiaries, so long as all part of a series of related transactions and such transaction steps are not unreasonably delayed and are otherwise permitted hereunder;
(dd) Investments to the extent that payment for such Investments is made solely with Equity Interests (other than any Disqualified Equity Interests) of the Parent, or proceeds of an equity contribution initially made to the Parent, in each case, that have not increased the Available Amount or the Cure Amount;
(ee) Guarantee obligations of the Parent or any Restricted Subsidiary in respect of letters of support, guarantees or similar obligations issued, made or incurred for the benefit of any Restricted Subsidiary to the extent required by law or in connection with any statutory filing or the delivery of audit opinions performed in jurisdictions other than within the United States;
(ff) (i) loans and advances to Parent or any Parent Entity in lieu of, and not in excess of the amount of (after giving effect to any other such loans or advances or Restricted Payments in respect thereof), Restricted Payments to the extent permitted to be made in accordance with Section 6.08 (other than Section 6.08(a)(xi)) or (ii) other Investments in lieu of and not in excess of the amount of (after giving effect to any other such Investments or payments, redemptions, repurchases, retirements, terminations or cancellations of Indebtedness pursuant to Section 6.08(b)(ix)), Restricted Payments to the extent permitted to be made in accordance with Section 6.08(a)(xiv);
(gg) Investments by the Parent or a Restricted Subsidiary in any Restricted Subsidiary pursuant to the Permitted Tax Restructuring;
(hh) asset purchases (including purchases of inventory, supplies and materials) and the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons, in each case in the ordinary course of business;
(jii) Investments held Guarantees by the Parent or any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 of leases (other than Capital Lease Obligations), contracts, or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07of other obligations that do not constitute Indebtedness, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, case entered into in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(ojj) other Investments and other acquisitionsInvestments; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any making such Investment no Event of Default has occurred and is continuing and the First Lien Leverage Ratio computed on a Pro Forma Basis as of the Applicable Date of Determination is less than 3.50:1.00. For the avoidance of doubt, if an Investment would be permitted under any provision of this Section 6.04 (other than Section 6.04(b)(ii)) and as a Permitted Acquisition, such Investment need not satisfy the requirements otherwise applicable to Permitted Acquisitions unless such Investments are consummated in reliance on Section 6.04(b)(ii). In addition, to the extent an Investment is permitted to be made by Parent or acquisitiona Restricted Subsidiary directly in any Restricted Subsidiary or any other Person who is not a Loan Party (each such person, a “Target Person”) under any provision of this Section 6.04, such Investment may be made by advance, contribution or distribution directly or indirectly to the Parent and further advanced or contributed by the Parent to a Loan Party or other Restricted Subsidiary for purposes of ultimately making the relevant Investment in the Target Person without constituting an Investment for purposes of Section 6.04 (it being understood that such Investment must satisfy the requirements of, and shall count toward any thresholds or baskets in, the Total Adjusted Net Leverage Ratio shall not exceed applicable clause under Section 6.04 as if made by the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of applicable Restricted Subsidiary directly to the ObligorTarget Person).
Appears in 1 contract
Investments. None of the Parent, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other than:
(a) Permitted Investments;
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries extensions of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of trade credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(ib) Investments received investments in connection with Cash Equivalents;
(c) Guarantee Obligations permitted by Section 7.2;
(d) loans and advances to employees of the bankruptcy Parent Borrower or reorganization of, or settlement any Subsidiary of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case Parent Borrower in the ordinary course of businessbusiness (including for travel, entertainment and relocation expenses) in an aggregate amount for the Parent Borrower or any Subsidiary of the Parent Borrower not to exceed $1,000,000 at any one time outstanding;
(je) the Acquisitions;
(f) Investments held in assets useful in the business of the Parent Borrower and its Subsidiaries made by the Parent Borrower or any Restricted of its Subsidiaries with the proceeds of any Reinvestment Deferred Amount;
(g) intercompany Investments by the Parent Borrower in any of its Wholly Owned Subsidiaries, provided that all such intercompany -------- Indebtedness shall be evidenced by promissory notes pledged pursuant to the Guarantee and Collateral Agreement and such intercompany Indebtedness shall be subordinated in right of payment to the payment in full of the Obligations hereunder;
(h) intercompany Investments by the Parent Borrower or any of its Subsidiaries in the Parent Borrower or any Person that, prior to such investment, is a Wholly Owned Subsidiary Guarantor; and
(i) in addition to Investments otherwise expressly permitted by this Section, the Equity Interests in which are acquired Parent Borrower may make acquisitions or Investments, provided that: (i) immediately prior to and after giving -------- effect to such acquisition or Investment, the Closing Date Parent Borrower shall be in compliance with this the provisions of Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, 7.15 hereof; (ii) deposits made any assets acquired pursuant to such acquisition or Investment shall be subject to a first priority Lien in connection with favor of the purchase Administrative Agent on behalf of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and Lenders; (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such acquisition or Investment shall be made on a fully consensual basis between Parent Borrower and its Subsidiaries on one hand and the seller or acquisition is purchased, made or otherwise acquired, the aggregate amount sellers of such Investment assets or business on the aggregate amount of all consideration paid in connection with such acquisition other hand; (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (Aiv) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each of such acquisition or Investment or caused thereby and (v) if the Consolidated Leverage Ratio (calculated on a pro forma basis giving effect to such --- ----- acquisition is purchased, made or otherwise acquiredInvestment) shall be greater than or equal to 2.50:1.0, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) acquisitions and Investments shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)$35,000,000.
Appears in 1 contract
Investments. None of The Borrower shall not, nor shall it permit any Subsidiary or the ParentLS&Co. Trust to, the Obligor directly or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, indirectly make or otherwise suffer to exist hold any Investment in any other PersonInvestments, or make any Acquisition, other thanexcept:
(a) Permitted Investments existing on the date hereof and described on Schedule 7.02 and any extensions or renewals thereof or conversions of any such ------------- loan Investments to equity Investments;
(b) equity Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor Borrower and the other Restricted its Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause described on Schedule 7.02; -------------
(bc) above) shall notadvances to officers, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 directors and (y) 15% of IKE-Adjusted EBITDA as employees of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor Borrower or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted its Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances analogous ordinary business purposes;
(d) Investments by the Borrower and its Subsidiaries in cash and Cash Equivalents;
(f) extensions of credit to directors, officers and employees customers or suppliers of the Borrower or any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made its Subsidiaries in the ordinary course of businessbusiness and any Investments received in satisfaction or partial satisfaction thereof;
(g) Investments by the Borrower in any Guarantor;
(h) Investments by any Guarantor in the Borrower or any other Guarantor;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to by any Group Member, in each case Pledged Domestic Subsidiary in the ordinary course of businessBorrower, any Guarantor or any other Pledged Domestic Subsidiary;
(j) Investments held by any Restricted Pledged Foreign Subsidiary in the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 Borrower, any Guarantor, any Pledged Domestic Subsidiary or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidationother Pledged Foreign Subsidiary;
(k) Investments made as a result of by any Unpledged Foreign Subsidiary (other than LSIFCS) in the receipt of noncash consideration from Borrower or any Disposition of Subsidiary and Investments by LSIFCS in the Borrower, any asset in compliance with Section 6.04Guarantor, any Pledged Domestic Subsidiary or any Pledged Foreign Subsidiary;
(l) Investments consisting by the Borrower in any of its Subsidiaries and Investments by any of its Subsidiaries in the Borrower or any of its other Subsidiaries; provided that the sum, without duplication, of (i) extensions of trade credit, such Investments made after the date hereof plus (ii) deposits made in connection with the purchase aggregate principal amount ---- of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and Indebtedness permitted by Section 7.03(c)(xiv) plus (iii) notes receivable ofthe aggregate -------------------- ---- dispositions permitted by Section 7.05(l) shall not exceed $50,000,000 in the --------------- aggregate during Fiscal Year 2003, or prepaid royalties $100,000,000 in the aggregate during Fiscal Years 2003 and other extensions 2004, taken as a single period, or $150,000,000 in the aggregate during Fiscal Years 2003, 2004 and 2005, taken as a single period, or $175,000,000 in the aggregate during Fiscal Years 2003, 2004, 2005 and 2006, taken as a single period; provided further that Investments in Subsidiaries of credit to, customers and suppliers -------- ------- the Borrower that are not Affiliates Solvent immediately prior to the making of any Group Member and that are made such Investment shall not exceed $10,000,000 in the ordinary course of businessaggregate in any Fiscal Year;
(m) Investments by the Borrower in any of its Subsidiaries and Investments by any of its Subsidiaries in the Borrower or any of its other Investments and other acquisitionsSubsidiaries resulting from a Disposition permitted under Section 7.05(n); provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;---------------
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at by the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid Borrower in Subsidiaries formed in connection with such acquisition Permitted Domestic Receivables Transactions permitted under Section ------- 7.03(c)(x); ----------
(determined as set forth o) Investments by any Subsidiary in clause (gthe Borrower or any Subsidiary formed in connection with a Permitted Foreign Receivables Transaction permitted under Section 7.03(c)(vi) of the definition of “Permitted Acquisition”) shall in an amount not to exceed the Available Amount proceeds thereof; ------------------
(p) other Investments by the Borrower and its Subsidiaries not otherwise permitted under this Section 7.02 in an aggregate amount not to exceed ------------ $35,000,000 at such any time outstanding;
(q) contribution of a promissory note executed by Levi Xxxxxxx & Co. Europe S.A. in each casefavor of Levi Xxxxxxx Continental S.A. (or its successors) from Levi Xxxxxxx Continental S.A. (or its successors) to LSIFCS in connection with sales permitted under Sections 7.05(e) and 7.05(n); ---------------- -------
(r) Investments, as certified if any, by a Responsible Officer of the Obligor)Borrower into the LS&Co. Trust and by the LS&Co. Trust permitted by the LS&Co. Trust Agreement; and
(os) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor).permitted under Section 7.04. ------------
Appears in 1 contract
Samples: Credit Agreement (Levi Strauss & Co)
Investments. None of the ParentThe Top Borrower shall not, the Obligor or any other and shall cause each Restricted Subsidiary shall purchase not to, directly or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdindirectly, make or otherwise suffer to exist any Investment in any other PersonInvestments, or make any Acquisition, other thanexcept:
(a) Permitted InvestmentsInvestments held by the Top Borrower or such Restricted Subsidiary in the form of cash, Cash Equivalents or short-term marketable securities;
(b) Investments existing on advances to officers, directors and employees of the Closing Date in SubsidiariesTop Borrower and its Subsidiaries for travel, entertainment, relocation and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date)analogous ordinary business purposes;
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries purchases or redemption of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged Top Borrower’s Capital Stock to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment7.06;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Investments in Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty AgreementParties, (ii) a Investments by any Borrower or any Guarantor in any Restricted Subsidiary that has is not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Partya Guarantor, (iiiA) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”in an aggregate amount, and (iv) the together with an aggregate amount of Indebtedness and other obligations Permitted Acquisitions of Restricted Subsidiaries that are not Loan Parties Parties, not to exceed the greater of (x) $75,000,000 and (y) (1) during the Minimum Liquidity Period, 7.5% of Consolidated Total Assets or (2) during the Leverage Test Period, 50% of Consolidated EBITDA of the Top Borrower and its Restricted Subsidiaries for the most recently ended Test Period at any time outstanding (the “Intercompany Debt/Investments Cap”) or (B) in the ordinary course of business in connection with cash management practices and (iii) Investments by Restricted Subsidiaries that is Guaranteed by any Loan Party shall be subject are not Guarantors in other Restricted Subsidiaries that are not Guarantors;
(e) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the limitation set forth extent reasonably necessary in clause order to prevent or limit loss (c)(iii) aboveincluding in connection with the bankruptcy or reorganization of such account debtors);
(f) capital expenditures and Investments in the form consisting of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payrollor to finance purchases and acquisitions of inventory, travelsupplies, entertainmentmaterials, relocation and similar advances to directors, officers and employees services or equipment or purchases of any Group Member that are expected at the time contract rights or licenses or leases of such advances to be treated as expenses of such Group Member for accounting purposes and that are made intellectual property in the ordinary course of business;
(g) Investments representing all or a portion of the sales price for property sold to another Person;
(h) Investments in existence, contemplated or made pursuant to binding commitments in effect on the Closing Date identified on Schedule 7.02;
(i) Investments received Permitted Acquisitions so long as (i) immediately before and after giving effect thereto, no Event of Default has occurred and is continuing and (ii) immediately after giving effect thereto on a Pro Forma Basis (x) during the Leverage Test Period, as of the last day of the most recently-ended Test Period the Top Borrower shall be in connection compliance with Section 7.10 (regardless of whether any Covenant Facility is then outstanding) and (y) during the Minimum Liquidity Period, minimum Liquidity, shall not be less than (x) for Permitted Acquisitions for which the cash consideration is less than $20,000,000, $75,000,000 or (y) for any other Permitted Acquisitions, $100,000,000; provided that the aggregate amount of Permitted Acquisitions (other than Permitted Acquisition for which the cash consideration consists only of common Capital Stock of the Top Borrower) of Restricted Subsidiaries that are not Loan Parties, together with the bankruptcy aggregate amount of Investments permitted under Section 7.02(d)(ii)(A), shall not exceed the Intercompany Debt/Investments Cap;
(j) additional Investments so long as the outstanding amount of such Investments at any time pursuant to this Section 7.02(j) does not exceed the sum of (i) the greater of (I) $50,000,000 and (II) (A) during the Minimum Liquidity Period, 5% of Consolidated Total Assets or reorganization of(B) during the Leverage Test Period, 33% of Consolidated EBITDA of the Top Borrower and its Restricted Subsidiaries for the most recently ended Test Period, plus (ii) the Available Amount determined at the time such Investment is made; provided that the portion of the Available Amount available to be utilized pursuant to this clause (j) during the Minimum Liquidity Period shall be limited to amounts attributable to clauses (b), (c) and (e) of the definition of Available Amount;
(k) solely during the Leverage Test Period, additional Investments so long as the Total Net Leverage Ratio, calculated on a Pro Forma Basis as of the most recently ended Test Period after giving effect to such Investment, would not exceed 3.50 to 1.00;
(l) Investments consisting of the licensing or settlement contribution of delinquent accounts and disputes with, customers and suppliers, or in connection intellectual property pursuant to joint marketing arrangements with the satisfaction or enforcement of claims due or owing to any Group Member, in each case other Persons in the ordinary course of business;
(jm) any Investment made in lieu of payment of a Tax or in consideration of a reduction in Tax;
(n) Investments held by of a Person existing at the time such Person is acquired, becomes a Restricted Subsidiary or is amalgamated, merged or consolidated with or into the Top Borrower or any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after to the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as extent that such Investments were not made in contemplation of or in connection with such acquisition, designation, redesignation, amalgamation, merger or consolidation and were in existence on the date of such acquisition, amalgamation, merger or consolidation;
(ko) Investments made as a result resulting from pledges and deposits under Sections 7.01(e), (f), (k), (l), (q), (y), (z), (aa) and (bb) (to the extent in respect of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04foregoing clauses);
(lp) Investments consisting of constituting non-cash consideration for Dispositions permitted under Section 7.05;
(iq) extensions of trade credit, (ii) deposits made Investments in connection with Swap Contracts related to the purchase of goods Loans or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made entered into in the ordinary course of business;
(mr) to the extent constituting Investments, transactions permitted under Section 7.04; and
(s) any Investments made with the net cash proceeds of issuance of Capital Stock of the Top Borrower (other Investments and than Disqualified Capital Stock) to, or capital contribution to the Top Borrower from, a Person that is not a Restricted Subsidiary, so long as such amounts are not applied to any other acquisitions; provided thatbasket or exception in the Loan Documents. For purposes of determining compliance with this Section 7.02, at in the event that an Investment meets the criteria of more than one of the categories of Investment described in subsections (a) through (s) above, the Top Borrower may from time each to time, in its sole discretion, classify or reclassify such Investment (or acquisition is purchased, made or otherwise acquired, any portion thereof) and will only be required to include the aggregate amount and type of such Investment in one or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) more of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent above subsections. Notwithstanding anything to the Closing Date as of such time contrary in this Section 7.02, the Top Borrower and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default its Restricted Subsidiaries shall not, directly or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchasedindirectly, made sell or otherwise acquiredtransfer any intellectual property or a fee interest or leasehold interest in any real property, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer that is material to the operations of the Obligor); and
(o) other Investments Top Borrower and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect its Restricted Subsidiaries to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)Unrestricted Subsidiary.
Appears in 1 contract
Samples: Canadian Benchmark Replacement Conforming Changes Amendment (Viad Corp)
Investments. None The Parent Borrower shall not, nor shall it permit any of the Parent, the Obligor or any other its Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), holdSubsidiaries to, make or otherwise suffer to exist own any Investment in any other Person, or make any Acquisition, other thanPerson except:
(a) Permitted InvestmentsCash or Investments that were Cash Equivalents at the time made;
(b) (i) Investments existing on the Closing Date in Subsidiaries, any subsidiary and (ii) Investments among the Parent Borrower and/or one or more Restricted Subsidiaries in any Loan Party (other Investments existing on than Holdings) or any other Restricted Subsidiary of the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date)Parent Borrower;
(c) investments by Investments (i) constituting deposits, prepayments and/or other credits to suppliers and/or (ii) in the Parentform of advances made to distributors, suppliers, licensors and licensees, in each case, in the Obligor and ordinary course of business or, in the other case of clause (ii), to the extent necessary to maintain the ordinary course of supplies to the Parent Borrower or any Restricted Subsidiaries Subsidiary;
(d) Investments in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Unrestricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior immediately after giving effect to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged Investment, the amount invested in the applicable Unrestricted Subsidiary pursuant to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by this clause (b) above) d), when aggregated with the amounts then invested in all other Unrestricted Subsidiaries pursuant to this clause (d), shall not, at any when made, not exceed $15,000,000 at any time outstandingthe outstanding the greater of (x) $20,000,000 40,000,000 and (y) 151.0% of IKE-Adjusted EBITDA Consolidated Total Assets as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investmentrecent Test Period;
(de) loans or advances made by the Parent, the Obligor or any other (i) Permitted Acquisitions and (ii) Investments in Restricted Subsidiary Subsidiaries that are not Loan Parties in amounts required to any permit such Restricted SubsidiarySubsidiaries to consummate Permitted Acquisitions; provided that the aggregate amount of Investments made pursuant to this clause (iii) shall not exceed (x) the Indebtedness resulting therefrom is permitted by greater of $160,000,000 and 4.0% of Consolidated Total Assets as of the last day of the most recent Test Period minus (y) the aggregate total consideration paid pursuant to clause (eb)(ii)(A) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted DebtAcquisition”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments (i) existing on, or contractually committed to or contemplated as of, the Closing Date and described on Schedule 6.06 and (ii) any modification, replacement, renewal or extension of any Investment described in clause (i) above so long as no such modification, renewal or extension thereof increases the form amount of Hedge Agreements such Investment except by the terms thereof or as otherwise permitted under by this Section 6.126.06);
(g) Permitted AcquisitionsInvestments received in lieu of Cash in connection with any Disposition permitted by Section 6.07;
(h) Any payroll, travel, entertainment, relocation and similar loans or advances to present or former employees, directors, officers and employees members of management, officers, managers or consultants or independent contractors (or their respective Immediate Family Members) of any Group Member that are expected Parent Company, the Parent Borrower and its subsidiaries to the extent permitted by Requirements of Law, in connection with such Person’s purchase of Capital Stock of any Parent Company, either (i) in an aggregate principal amount not to exceed $10,000,000 at any one time outstanding or (ii) so long as the time proceeds of such advances loan or advance are substantially contemporaneously contributed to be treated as expenses the Parent Borrower for the purchase of such Group Member for accounting purposes and that are made in the ordinary course of businessCapital Stock;
(i) Investments received consisting of extensions of credit in connection with the bankruptcy nature of accounts receivable or reorganization of, or settlement notes receivable arising from the grant of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case trade credit in the ordinary course of business;
(j) Investments held consisting of Indebtedness permitted under Section 6.01 (other than Indebtedness permitted under Sections 6.01(b) and (h)), Permitted Liens, Restricted Payments permitted under Section 6.04 (other than Section 6.04(a)(ix)), Restricted Debt Payments permitted by Section 6.04 and mergers, consolidations, amalgamations, liquidations, windings up, dissolutions or Dispositions permitted by Section 6.07 (other than Section 6.07(a) (if made in reliance on subclause (ii)(y) of the proviso thereto), Section 6.07(b) (if made in reliance on clause (ii) therein), Section 6.07(c)(ii) (if made in reliance on clause (B) therein) and Section 6.07(g));
(k) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers;
(l) Investments (including debt obligations and Capital Stock) received (i) in connection with the bankruptcy or reorganization of any Person, (ii) in settlement of delinquent obligations of, or other disputes with, customers, suppliers and other account debtors arising in the ordinary course of business, (iii) upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment and/or (iv) as a result of the settlement, compromise, resolution of litigation, arbitration or other disputes;
(m) loans and advances of payroll payments or other compensation to present or former employees, directors, members of management, officers, managers or consultants of any Parent Company (to the extent such payments or other compensation relate to services provided to such Parent Company (but excluding, for the avoidance of doubt, the portion of any such amount, if any, attributable to the ownership or operations of any subsidiary of any Parent Company other than the Parent Borrower and/or its subsidiaries)), the Parent Borrower and/or any subsidiary in the ordinary course of business;
(n) Investments to the extent that payment therefor is made solely with Capital Stock of any Parent Company or Capital Stock (other than Disqualified Capital Stock) of the Parent Borrower or any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07Subsidiary, in each case, so long to the extent not resulting in a Change of Control;
(i) Investments of any Restricted Subsidiary acquired after the Closing Date, or of any Person acquired by, or merged into or consolidated or amalgamated with, the Parent Borrower or any Restricted Subsidiary after the Closing Date, in each case as part of an Investment otherwise permitted by this Section 6.06 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger merger, amalgamation or consolidation and were in existence on the date of such the relevant acquisition, merger merger, amalgamation or consolidationconsolidation and (ii) any modification, replacement, renewal or extension of any Investment permitted under clause (i) of this Section 6.06(o) so long as no such modification, replacement, renewal or extension thereof increases the amount of such Investment except as otherwise permitted by this Section 6.06;
(kp) [reserved];
(q) Investments made after the Closing Date by the Parent Borrower and/or any of its Restricted Subsidiaries in an aggregate amount not to exceed:
(i) at any time outstanding, the greater of $160,000,000 and 4.0% of Consolidated Total Assets as a result of the receipt last day of noncash consideration from the most recently ended Test Period, plus
(ii) at any Disposition time outstanding, the greater of $160,000,000 and 4.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period, minus (A) the amount of Restricted Payments made by the Parent Borrower or any asset Restricted Subsidiary in compliance with reliance on Section 6.046.04(a)(x), minus (B) the amount of Restricted Debt Payments made by the Parent Borrower or any Restricted Subsidiary in reliance on Section 6.04(b)(iv)(B), plus
(iii) at any time outstanding, the greater of $160,000,000 and 4.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period, minus the amount of Restricted Debt Payments made in reliance on Section 6.04(b)(iv)(A), plus
(iv) in the event that (A) the Parent Borrower or any of its Restricted Subsidiaries makes any Investment after the Closing Date in any Person that is not a Restricted Subsidiary and (B) such Person subsequently becomes a Restricted Subsidiary, an amount equal to 100.0% of the fair market value of such Investment as of the date on which such Person becomes a Restricted Subsidiary;
(lr) Investments consisting made after the Closing Date by the Parent Borrower and/or any of its Restricted Subsidiaries in an aggregate outstanding amount not to exceed (i) extensions the portion, if any, of trade credit, the Available Amount on such date that the Parent Borrower elects to apply to this clause (r)(i) plus (ii) deposits made in connection with the purchase portion, if any, of goods the Available Excluded Contribution Amount on such date that the Parent Borrower elects to apply to this clause (r)(ii);
(i) Guarantees of leases (other than Capital Leases) or services or of other obligations not constituting Indebtedness and (ii) Guarantees of the performance lease obligations of leasessuppliers, licenses or contractscustomers, franchisees and licensees of the Parent Borrower and/or its Restricted Subsidiaries, in each case, in the ordinary course of business;
(t) Investments in any Parent Company in amounts and for purposes for which Restricted Payments to such Parent Company are permitted under Section 6.04(a); provided that any Investment made as provided above in lieu of any such Restricted Payment shall reduce availability under the applicable Restricted Payment basket under Section 6.04(a);
(u) Investments made by any Restricted Subsidiary that is not a Loan Party with the proceeds received by such Restricted Subsidiary from an Investment made by any Loan Party in such Restricted Subsidiary pursuant to this Section 6.06 (other than Investments made pursuant to clause (ii) of Section 6.06(e) or Section 6.06(x));
(v) Investments in subsidiaries and joint ventures in connection with reorganizations and related activities related to tax planning; provided that, and after giving effect to any such reorganization and/or related activity, the security interest of the Administrative Agent in the Collateral, taken as a whole, is not materially impaired;
(iiiw) notes receivable ofInvestments under any Derivative Transaction of the type permitted under Section 6.01(s);
(x) Investments made in connection with the creation, formation and/or acquisition of any joint venture, or prepaid royalties in any Restricted Subsidiary to enable such Restricted Subsidiary to create, form and/or acquire any joint venture, in an aggregate outstanding amount not to exceed the greater of $80,000,000 and 2.0% of Consolidated Total Assets as of the last day of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 5.01(a) or (b), as applicable;
(y) Investments made in joint venture as required by, or made pursuant to, buy/sell arrangements between the joint venture parties set forth in joint venture agreements and similar binding arrangements in effect on the Closing Date (other than any modification, replacement, renewal or extension of such Investments so long as no such modification, renewal or extension thereof increased the amount of any such Investment except by the terms thereof or as otherwise permitted by this Section 6.06);
(z) unfunded pension fund and other extensions of credit toemployee benefit plan obligations and liabilities to the extent that they are permitted to remain unfunded under applicable law;
(aa) Investments in the Borrower, customers any subsidiary and/or any joint venture in connection with intercompany cash management arrangements and suppliers that are not Affiliates of any Group Member and that are made related activities in the ordinary course of business;
(mbb) other additional Investments and other acquisitions; provided thatso long as, at the time each such Investment or acquisition is purchased, made or otherwise acquiredafter giving effect thereto on a Pro Forma Basis, the aggregate amount Total Leverage Ratio does not exceed 4.75:1.00;
(cc) Investments consisting of such Investment the licensing or the aggregate amount contribution of all consideration paid IP Rights pursuant to joint marketing arrangements with other Persons;
(dd) Investments made in connection with such acquisition any NMTC Transaction; and (determined as set forth in clause (gee) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to consummate the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)Restructuring.
Appears in 1 contract
Samples: Term Loan Credit Agreement (PQ Group Holdings Inc.)
Investments. None of the ParentMake or own any Investments, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Permitted Investments;
(b) Investments existing on the Closing Date in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor Borrower and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries any Subsidiary of the Parent prior to such investments, (ii) Borrower in any such Equity Interests held by Wholly-Owned Subsidiary and in any entity which becomes a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKEWholly-Adjusted EBITDA Owned Subsidiary as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date a result of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(fc) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at dollar amount outstanding on the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made Closing Date in the ordinary course entities listed in Section (c) of businessSchedule 5.12 provided that such entities satisfy the requirements set forth in the definition of Permitted Joint Ventures;
(i) Investments received in connection with Permitted Joint Ventures by the bankruptcy Borrower or reorganization of, or settlement a Subsidiary of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement Borrower made during the 90-day period prior the issuance of claims due or owing to any Group Memberequity by the MLP, in each case an amount equal to the net proceeds of such equity issuance, to the extent that the stated purpose of such equity issuance in the ordinary course relevant prospectus is the making of businesssuch specifically identified Investments in such amounts, provided that until such equity is issued and such net proceeds are received, such Investments shall not be permitted Investments under this clause (d(i)) (but may be permitted under clause (e) below), and
(ii) Investments in Permitted Joint Ventures by the Borrower or a Subsidiary of the Borrower made during the 120-day period after the issuance of equity by the MLP, in an amount equal to the net proceeds of such equity issuance, to the extent that the stated purpose of such equity issuance in the relevant prospectus is the making of such specifically identified Investments in such amounts, provided that in the case of clauses (d)(i) and (ii), such issuance of equity is done after the Closing Date;
(je) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired made after the Closing Date in compliance with this Section 6.07 by the Borrower or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result Subsidiary of the receipt of noncash consideration from any Disposition of any asset Borrower in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made Permitted Joint Ventures and in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers Subsidiaries that are not Affiliates of any Group Member and Wholly-Owned Subsidiaries, provided that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”e) shall not exceed $150,000,000;
(f) Investments by the Available Amount at such time MLP in the Borrower and the General Partner;
(g) Trade accounts receivable which are for goods furnished or services rendered in each case, as certified by a Responsible Officer the ordinary course of the Obligor)business; and
(oh) other Investments Deposits of net cash receipts and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at cash disbursements pursuant to the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor).Treasury Services Agreement;
Appears in 1 contract
Investments. None of the ParentMake or hold any Investments, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Permitted InvestmentsInvestments held by the Borrower and its Restricted Subsidiaries in the form of Cash Equivalents;
(b) Investments existing on advances to officers, directors and employees of the Closing Date Borrower and Restricted Subsidiaries in Subsidiariesan aggregate amount not to exceed $100,000 at any time outstanding, for travel, entertainment, relocation and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date)analogous ordinary business purposes;
(ci) investments Investments by the Parent, the Obligor Borrower and the other its Restricted Subsidiaries in Equity Interests in their respective Restricted Subsidiaries outstanding on the date hereof, (including as capital contributions to such Restricted Subsidiaries); provided that (iii) such additional Investments by the Borrower and its Restricted Subsidiaries are in Loan Parties, (iii) additional Investments by Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Borrower that are not Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and in other obligations of, Restricted Subsidiaries that are not Loan Parties and (excluding all such investmentsiv) Investments (including, but not limited to, Investments in Equity Interests, intercompany loans, advances and Guarantees of Indebtedness otherwise expressly permitted hereunder) after the Closing Date by Loan Parties in Subsidiaries that are not Loan Parties, in partnerships, joint ventures or any other Person in a similar business to the Loan Parties, provided that (A) no Default or Event of Default shall have occurred and is continuing, or would result therefrom, (B) after giving effect to such Investment on a Pro Forma Basis, including any Indebtedness incurred in connection therewith, the Consolidated Total Leverage Ratio or the Consolidated Net Total Leverage Ratio, as applicable, shall not exceed 3.50 to1.00, (C) after giving effect to such Investment, including any Indebtedness incurred in connection therewith, the Loan Parties shall have Liquidity of at least $35,000,000, and (D) the aggregate amount of such Investments under this clause (iv) shall not exceed (x) prior to the IPO Closing Date, the greater of (A) $10,000,000 and (B) 5% of Consolidated Net Tangible Assets in the aggregate at any time outstanding, and (y) on and after the IPO Closing Date, the greater of (A) $20,000,000 and (B) 10% of Consolidated Net Tangible Assets in the aggregate at any time outstanding;
(d) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(e) Guarantees permitted by Section 7.02;
(f) Investments existing on the date hereof (other than those referred to in Section 7.03(c)(i)) and permitted set forth on Schedule 7.03;
(g) Acquisitions (by clause purchase or merger) provided that (bi) abovea Loan Party is the acquiring or surviving entity; (ii) shall notimmediately before and after giving effect to such Acquisition on a Pro Forma Basis, at no Default or Event of Default exists; (iii) immediately before and after giving effect to such Acquisition on a Pro Forma Basis, the Borrower and its Restricted Subsidiaries would have been in compliance with Section 7.11 as of the end of the most recently ended fiscal quarter for which financial statements are available; (iv) with respect to any when madeAcquisition consummated prior to the IPO Closing Date (other than, exceed $15,000,000 at for the avoidance of doubt, the Closing Date Drop Downs), after giving effect to such Acquisition, including any time outstandingthe greater of Indebtedness incurred in connection therewith, on a Pro Forma Basis (x) the Loan Parties shall have Liquidity of at least $20,000,000 and (y) 15% the Consolidated Total Leverage Ratio shall not exceed 4.00 to 1.00; (v) the requirement of IKE-Adjusted EBITDA as Section 7.07 is satisfied and the Acquisition is not hostile; (vi) if such Acquisition is of Equity Interests, the issuer of such Equity Interests shall be an entity organized under the laws of the last day United States and shall become a wholly-owned Restricted Subsidiary upon consummation of such Acquisition; and (vii) with respect to any Material Acquisition, the most recently ended four consecutive Fiscal Quarters for which financial statements Administrative Agent shall have been delivered pursuant received, at least five (5) Business Days (or such lesser time period as is reasonably acceptable to Section 5.04(a) or 5.04(bthe Administrative Agent) prior to the date on which any such Acquisition is to be consummated, a certificate of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) a Responsible Officer of the definition Borrower certifying that all of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation requirements set forth in clause (c)(iiithis Section 7.03(g) above;
(e) Guarantees by have been satisfied or will be satisfied on or prior to the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations consummation of the Parent, the Obligor or any other Restricted Subsidiary Acquisition (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations each Acquisition consummated pursuant to the Guaranty Agreementthis Section 7.03(g), (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted DebtAcquisition”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions);
(h) Any payroll, travel, entertainment, relocation and similar advances Investments representing non-cash consideration received with respect to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of businessDispositions permitted under Section 7.05;
(i) Investments in Swap Contracts permitted by Section 7.02(a);
(j) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;; and
(k) other Investments made as a result not exceeding the greater of (a) $5,000,000 and 2.5% of Consolidated Net Tangible Assets in the aggregate in any fiscal year of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made in the ordinary course of business;
(m) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor); and
(o) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)Borrower.
Appears in 1 contract
Investments. None of the ParentMake any Investments, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Investments held by Holdings, the Borrower or such Subsidiary in the form of cash or Permitted Investments;
(b) Investments existing on advances to officers, directors and employees of Holdings, the Closing Date Borrower and the Subsidiaries in Subsidiariesan aggregate amount not to exceed $1,000,000 at any time outstanding, for travel, entertainment, relocation, payroll advance and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date)analogous ordinary business purposes;
(c) investments by the Parent, the Obligor equity Investments of Holdings and the other Restricted its Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees Subsidiary existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day Execution Date and Investments made after the Execution Date by Holdings or any of its Subsidiaries in the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) Borrower or 5.04(b) prior to the date of such Investmentin any wholly-owned Subsidiary that is a Guarantor;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, credit in the ordinary course of business, and (iii) notes receivable of, Investments received in satisfaction or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in the ordinary course of businessorder to prevent or limit loss;
(me) other Investments and other acquisitionsGuarantees permitted by Section 7.03;
(f) after the Funding Date, Permitted Acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to that (i) the Available Equity Amount at before and after giving pro forma effect in accordance with Section 7.15 to such timePermitted Acquisitions and any Credit Extensions made in accordance therewith, minus (ii) the sum of (A) Excess Availability on the aggregate amount date of Investments made pursuant to this clause the consummation of such Permitted Acquisition (mthe “Permitted Acquisition Date”) subsequent and for the period of 30 days prior to the Closing Permitted Acquisition Date as shall be not less than the greater of such time (x) 15% of the Borrowing Base and (y) $9,000,000, (B) the aggregate amount of all Available Amount Expenditures based on usage of Consolidated Fixed Charge Coverage Ratio for the Available Equity Amount subsequent twelve fiscal month period most recently ended prior to the Closing Permitted Acquisition Date as of such time;
shall be at least 1.0 to 1.0, and (n) other Investments and other acquisitions; provided that (AC) no Specified Default or Event of Default shall have occurred and be continuing or would immediately result therefrom therefrom, (ii) the Acquisition Consideration for such acquisition shall be funded with Permitted Acquisition Consideration and (iii) the Administrative Agent shall have received a Compliance Certificate from the Borrower demonstrating compliance with clause (B) at above;
(g) Investments existing on the time each date hereof, as set forth on Schedule 7.02;
(h) securities or assets received or other Investments made as a result of the receipt of non-cash consideration from any Disposition permitted by Section 7.05;
(i) Investments received from any past, present or future employee, consultant or director of Holdings, the Borrower or any Subsidiary as consideration for the acquisition by such Investment or acquisition is purchasedPerson of Equity Interests in Holdings;
(j) Investments constituting Capital Expenditures;
(k) Investments constituting Holdings Administrative Advances; provided that the aggregate amount thereof in any fiscal year, made or otherwise acquired, together with the aggregate amount of Restricted Payments made in such Investment or fiscal year in reliance on Section 7.06(e), does not exceed $500,000 (or, following an Initial Public Offering, $1,500,000);
(l) Investments constituting Swap Contracts permitted by Section 7.03(g);
(m) Investments solely to the aggregate amount of all consideration paid in connection extent financed with such acquisition (determined as set forth in clause (g) proceeds of the definition issuance and sale of “Permitted Acquisition”Equity Interests to the Equity Investors for the purpose of financing such Investments;
(n) shall not exceed the Available Amount at such time (Borrower and its Subsidiaries may make prepayments and deposits to suppliers in each case, as certified by a Responsible Officer the ordinary course of business consistent with the Obligor); andpast practices of Holdings and its Subsidiaries;
(o) intercompany loans to the extent permitted under Section 7.03(f) and other Investments and other acquisitionsin Subsidiaries which are not wholly-owned Guarantors; provided that such Investments (including through intercompany loans and any Permitted Acquisition) in Subsidiaries other than wholly-owned Guarantor Subsidiaries of the Borrower shall not exceed an aggregate amount of $1,000,000 at any time outstanding, which amount may be replenished pursuant to the terms of the second proviso hereto; provided, further, that to the extent any Loan Party receives a return of capital or a cash dividend or distribution in respect of, or interest on or a cash repayment of the principal of any loan made as, an Investment under this clause (o), the amount of such return of capital, dividend, distribution, interest or principal repayment shall be treated as a return of the original Investment in respect thereof and accordingly shall replenish and be credited to the amount available for Investments under this clause (o);
(p) (i) a one-time Investment consisting of the non-cash contribution of assets into a single joint venture (the “Special Joint Venture”) so long as (x) a Loan Party owns and controls at least 50% on a fully diluted basis of the economic and voting interests in the Equity Interests of the Special Joint Venture, (y) the Borrower’s Consolidated Net Income for the most recent four fiscal quarter period (determined in accordance with GAAP) attributable to such assets is negative and (z) the book value of such assets does not exceed $100,000 and (ii) Investments in the Special Joint Venture of cash in an aggregate amount not to exceed (A) $2,000,000 during the year following the date on which the Special Joint Venture is formed, (B) $1,500,000 during the second year following the date on which the Special Joint Venture is formed, (C) $750,000 during the third year following the date on which the Special Joint Venture is formed and (D) $500,000 during the fourth year following the date on which the Special Joint Venture is formed; provided, in the case of both clauses (i) and (ii), that no Specified Default or such Investment shall be made if an Event of Default shall have occurred and be continuing or shall be caused thereby;
(q) other Investments (but excluding Permitted Acquisitions) in an aggregate amount not to exceed $5,000,000 at any time outstanding during the term of this Agreement, which amount may be replenished pursuant to the terms of the second proviso hereto, plus the amount of any Permitted Additional Equity to the extent issued substantially contemporaneously with such Investment; provided that no such Investments shall be made if an Event of Default shall have occurred and be continuing or shall be caused thereby; provided, further, that to the extent any Loan Party receives a return of capital of a cash dividend or distribution in respect of, or interest on or a cash repayment of the principal of any loan made as, an Investment under this clause (q), the amount of such dividend, distribution or principal repayment shall be treated as a return of the original Investment in respect thereof and accordingly shall replenish and be credited to the amount for Investments under this clause (q);
(r) the repurchase of Indebtedness permitted hereunder in accordance with Section 7.18; and
(s) other Investments (but excluding Permitted Acquisitions), provided that (i) Excess Availability on the date of such Investment and for the 30 days prior to the date of such Investment is not less than the greater of 15% of the Borrowing Base and $9,000,000, (ii) the Borrower has a Consolidated Fixed Charge Coverage Ratio (determined for the twelve fiscal month period most recently ended for which financial statements are required to have been delivered to the Administrative Agent pursuant to Section 6.01(c)) of not less than 1.0:1.0, (iii) no Default or Event of Default has occurred and is continuing or would occur immediately thereafter as a result therefrom thereof and (Biv) at the time Administrative Agent shall have received a Compliance Certificate from the Borrower demonstrating compliance with clause (ii) above. Notwithstanding the foregoing, in no event shall any Loan Party make any Investment which results in or facilitates in any manner any Restricted Payment not otherwise permitted under the terms of Section 7.06. For the avoidance of doubt, if an Investment would be permitted under any provision of this Section 7.02 (other than Section 7.02(f)) and immediately after giving effect to any as a Permitted Acquisition, such Investment or acquisition, need not satisfy the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio requirements otherwise applicable to Permitted Acquisitions unless such Investment is consummated in reliance on a pro forma basis (in each case, as certified by a Responsible Officer of the ObligorSection 7.02(f).
Appears in 1 contract
Samples: Revolving Credit Agreement (Keystone Automotive Operations Inc)
Investments. None The Borrower will not, and will not permit any of its Restricted Subsidiaries to, make any advance, loan, extension of credit (by way of Guarantee or otherwise) or capital contribution to, or purchase any Equity Interests, bonds, notes, debentures or other debt securities of, or any assets constituting a business unit of, or incur any Unrestricted Subsidiary Support Obligations with respect to, any other Person (all of the Parentforegoing, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other than“Investments”) except:
(a) Permitted Investments;
(b) Investments existing on the Closing Date in Subsidiaries, extensions of trade credit and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date);
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions credit to such Restricted Subsidiaries); provided that (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, (ii) any such Equity Interests held by a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and (iii) the aggregate amount of such investments by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, Restricted Subsidiaries that are not Loan Parties (excluding all such investments, loans, advances and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made customers in the ordinary course of business;
(b) Investments in cash and Cash Equivalents and Investments that were Cash Equivalents when made;
(c) loans and advances to directors, employees and officers of the Borrower or any Restricted Subsidiary in the ordinary course of business (including for travel, entertainment and relocation expenses) in an aggregate principal amount for the Borrower and its Restricted Subsidiaries not to exceed $10,000,000 at any one time outstanding;
(d) Investments made by the Borrower or any Restricted Subsidiary in the Borrower or any Restricted Subsidiary;
(e) Investments (other than Investments directly or indirectly in Unrestricted Subsidiaries) made at any time if, after giving pro forma effect thereto, (i) the Borrower shall be in compliance with Section 6.10 and (ii) no Default shall have occurred and be continuing;
(f) any Investment existing on, or made pursuant to binding commitments existing on, the Closing Date and disclosed to the Lenders in writing on the Closing Date;
(g) Investments not prohibited by Section 6.05;
(h) Investments in Unrestricted Subsidiaries not to exceed in the aggregate outstanding at any time the greater of $75,000,000 and 2.0% of Total Assets, determined net of any cash recoveries actually received in respect of such Investments (it being understood that, if an Unrestricted Subsidiary becomes a Restricted Subsidiary, there will be deemed to have occurred a cash recovery of all Investments made in such subsidiary on or after the Closing Date); provided that after giving pro forma effect to each such Investment, no Default shall have occurred and be continuing;
(i) Guarantees not prohibited by Section 6.01;
(j) Investments to the extent that payment for such Investments is made with Qualified Equity Interests of the Borrower;
(k) accounts, chattel paper and notes receivable arising from the sale or lease of goods or the performance of services in the ordinary course of business;
(l) Investments received in connection with the bankruptcy or reorganization of, or of suppliers and customers and in settlement of delinquent accounts obligations of, and other disputes with, suppliers and customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(l) Investments consisting of (i) extensions of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made arising in the ordinary course of business;
(m) other Investments and other acquisitions; provided thatInvestments, at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid including in connection with such acquisition (determined as set forth in clause (g) joint ventures of the definition of “Permitted Acquisition”) shall not exceed Borrower or any Restricted Subsidiary, in an amount equal not to (i) exceed at any one time outstanding the Available Equity Amount at such time, minus (ii) the sum greater of (A) the aggregate amount $75,000,000 or 2.00% of Investments made pursuant to this clause (m) subsequent to the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such timeTotal Assets;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) arising out of the definition receipt by the Borrower or a Restricted Subsidiary of “Permitted Acquisition”noncash consideration for the sale of assets permitted under Section 6.08;
(o) shall Guarantees by the Borrower or any Restricted Subsidiary of operating leases (other than Capital Lease Obligations) or of other obligations that do not exceed the Available Amount at such time (constitute Indebtedness, in each case, as certified case entered into by a Responsible Officer the Borrower or Restricted Subsidiary in the ordinary course of the Obligor)business; and
(op) other Investments lease, utility and other acquisitions; provided that (A) no Specified Default or Event similar deposits in the ordinary course of Default shall have occurred and be continuing or would result therefrom and (B) at the time of and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer of the Obligor)business.
Appears in 1 contract
Investments. None of the ParentMake any Investments, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Permitted InvestmentsInvestments held by the Parent Guarantor, the Borrower or any Restricted Subsidiary in the form of cash and Cash Equivalents;
(b) advances to officers, directors, employees and consultants of the Parent Guarantor, the Borrower and Restricted Subsidiaries (i) in an aggregate amount not to exceed $2,500,000 at any time outstanding, for travel, entertainment, relocation and analogous ordinary business purposes; and (ii) in connection with such Person’s purchase of Equity Interests of the Parent Guarantor, provided that, no cash is actually advanced pursuant to this clause (ii) unless immediately repaid; provided further, that notwithstanding the foregoing, no Investments existing on may be made pursuant to this clause (b) during the Closing Date Covenant Relief Period in Subsidiaries, and other Investments existing on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date)excess of $500,000;
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that Investments (i) existing or contractually committed on the Funding Date in Subsidiaries existing on the Funding Date; provided that, in the case of this clause (i), any such Investments in Restricted Subsidiaries that are not Loan Parties in the form of intercompany loans by Loan Parties shall be evidenced by notes that have been pledged (individually or pursuant to a global note) to the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent for the benefit of the Secured Parties unless such pledge would, in the good faith judgment of the Borrower in consultation with the Administrative Agent, result in adverse tax consequences to the Parent Guarantor, the Borrower and the Restricted Subsidiaries of as reasonably determined by Borrower in consultation with the Parent prior to such investments, Administrative Agent; (ii) in Loan Parties (including those formed or acquired after the Funding Date so long as the Parent Guarantor, the Borrower and the Restricted Subsidiaries comply Redline Waldencast - Credit Agreement (as amended by the Second Amendment) 2324969v9 and WALD - Credit Agreement (conformed through Third Amendment) 2412084v2 04/26/2024 1:14:08 PM with the applicable provisions of Section 5.11, provided that, notwithstanding anything to the contrary in this Agreement or any other Loan Document, the Lien of the Administrative Agent for the benefit of the Secured Parties shall not attach to any such Equity Interests held by Investment in the form of an intercompany loan and any intercompany note evidencing such loan shall not be required to be delivered to the Administrative Agent if any such note is subsequently reasonably promptly contributed to a Subsidiary that is not a Loan Party shall be pledged pursuant to the extent required Section 6.02(c)(iv)); (iii) by Restricted Subsidiaries that are not Loan Parties in Restricted Subsidiaries that are not Loan Parties; (iv) by the definition Borrower or any other Loan Party in Unrestricted Subsidiaries or in Restricted Subsidiaries that are not Loan Parties; provided that, in the case of this clause (iv), (A) no Event of Default shall have occurred and be continuing, (B) the term “Collateral Parent Guarantor, the Borrower and Guarantee Requirement” and the Restricted Subsidiaries comply with the applicable provisions of Section 5.11, (iiiC) the aggregate amount of all such investments Investments outstanding at any time (determined without regard to any write-downs or write-offs of such Investments) shall not exceed the sum of (1) the greater (x) of $10,000,000 and (y) 15% of Consolidated EBITDA of the Parent Guarantor, the Borrower and the Restricted Subsidiaries based on the most recent financial statements delivered under Section 5.01(a) or (b) or, prior to the time any such statements are first required to be so delivered pursuant to Section 5.01(a) or (b), the financial statements delivered pursuant to (1) prior to the Funding Date, Section 4.01(d)(i) and (2) on and after the Funding Date, Section 4.01(d)(i) and (ii) plus (2) an amount not to exceed the Available Amount at the time of the making of such Investment, plus (3) any Net Equity Proceeds; provided further that, this clause (C) shall not apply to any such Investment that is in the form of an equity contribution or intercompany loan if, reasonably promptly following receipt of such equity contribution or intercompany loan, the proceeds of such equity contribution or intercompany loan shall be used by the Loan Parties in, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties of Indebtedness and other obligations of, such Restricted Subsidiaries that are not Loan Parties (excluding all or Subsidiaries thereof) to consummate a Permitted Acquisition (and any such investments, loans, advances and Guarantees existing on Investment described in this proviso shall not utilize the date hereof and permitted by basket set forth in this clause (bC), but shall, if applicable, utilize the basket set forth in the definition of Permitted Acquisition) aboveand (D) any such Investments in the form of intercompany loans shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater be evidenced by notes that have been pledged (individually or pursuant to a global note) to the Administrative Agent in form and substance reasonably satisfactory to the Administrative Agent for the benefit of the Secured Parties unless (x) $20,000,000 such pledge would result in adverse tax consequences to the Parent Guarantor, the Borrower and the Restricted Subsidiaries as reasonably determined by Borrower in consultation with the Administrative Agent or (y) 15% reasonably promptly following the making of IKE-Adjusted EBITDA such intercompany loan the holder of such note representing such loan contributes such note as an equity contribution to any Restricted Subsidiary that is not a Loan Party that will reasonably promptly following receipt of such equity contribution consummate (or cause one or more of its Restricted Subsidiaries to consummate) a Permitted Acquisition, in which case and in each such case, notwithstanding anything to the contrary in this Agreement or any other Loan Document, the Lien of the last day Administrative Agent for the benefit of the most recently ended four consecutive Fiscal Quarters for which financial statements have been Secured Parties shall not attach to any such note, and any such note shall not be required to be delivered pursuant to Section 5.04(a) or 5.04(b) prior to the date of such InvestmentAdministrative Agent;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) Investments consisting of the definition of “Permitted Debt” and (ii) the amount of such loans and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter extensions of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (ii) a Restricted Subsidiary that has not Guaranteed the Obligations pursuant to the Guaranty Agreement shall not Guarantee any Indebtedness or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) above;
(f) Investments in the form nature of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees accounts receivable or notes receivable arising from the grant of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(i) Any Investments by the Borrower or any Guarantor in the form of Permitted Acquisitions and (ii) any Permitted Acquisition by any Restricted Subsidiary that is not a Loan Party (or any Restricted Subsidiary thereof) funded from, reasonably promptly following receipt thereof, the cash proceeds received by such Restricted Subsidiary (or any parent entity(ies) thereof that is also a Restricted Redline Waldencast - Credit Agreement (as amended by the Second Amendment) 2324969v9 and WALD - Credit Agreement (conformed through Third Amendment) 2412084v2 04/26/2024 1:14:08 PM Subsidiary and that received such proceeds in accordance with Section 6.02(c)(iv)) from any equity contribution or intercompany loan permitted under Section 6.02(c)(iv);
(f) Guarantees permitted by Section 6.03 or of obligations that do not constitute Indebtedness in the ordinary course of business or consistent with past practice;
(g) to the extent constituting Investments, transactions expressly permitted under Sections 6.01 (other than Section 6.01(u)), 6.04 (other than Section 6.04(c)), 6.06(d) and 6.14;
(h) Investments existing on, or made pursuant to legally binding written commitments in existence on, the Funding Date and, to the extent having an aggregate value greater than $500,000, set forth on Schedule 6.02, and any modification, replacement, renewal or extension thereof; provided that, the amount of the original Investment is not increased except by the terms of such Investment or as otherwise permitted by this Section 6.02;
(i) promissory notes and other non-cash consideration received in connection with Dispositions permitted by Section 6.05;
(j) Investments (including debt obligations and Equity Interests) received in connection with the bankruptcy or reorganization of, or of suppliers and customers and in settlement of delinquent accounts obligations of, and other disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case suppliers arising in the ordinary course of businessbusiness and upon the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(jk) Investments to the extent that payment for such Investments is made solely by the issuance of Qualified Equity Interests of the Parent Guarantor to the seller of such Investments;
(l) Restricted Subsidiaries may be established or created if the Parent Guarantor, the Borrower and such Restricted Subsidiary comply with the requirements of Section 5.11, if applicable; provided that, in each case, to the extent such new Restricted Subsidiary is created solely for the purpose of consummating a transaction pursuant to an acquisition permitted by this Section 6.02, and such new Restricted Subsidiary at no time holds any assets or liabilities other than any merger or acquisition consideration contributed to it contemporaneously with the closing of such transactions, such new Restricted Subsidiary shall not be required to take the actions set forth in Section 5.11, as applicable, until the applicable acquisition is consummated (at which time the surviving entity of the applicable transaction shall be required to so comply in accordance with the provisions thereof);
(i) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 Funding Date, or held by of any Person acquired by, or merged into or consolidated or amalgamated with the Parent Guarantor, the Borrower or any Group Member Restricted Subsidiary after the Closing Date in compliance with Section 6.06 and this Section 6.07Funding Date, in each case, so long as part of an Investment otherwise permitted by this Section 6.02 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger merger, amalgamation or consolidation and were in existence on the date of such the relevant acquisition, merger merger, amalgamation or consolidationconsolidation and (ii) any modification, replacement, renewal or extension of any Investment permitted under clause (i) of this Section 6.02(m) so long as no such modification, replacement, renewal or extension thereof increases the amount of such Investment except as otherwise permitted by this Section 6.02; provided that, notwithstanding the foregoing, no Investments may be made pursuant to this clause (m) during the Covenant Relief Period that is not in connection with a Permitted Acquisition; Redline Waldencast - Credit Agreement (as amended by the Second Amendment) 2324969v9 and WALD - Credit Agreement (conformed through Third Amendment) 2412084v2 04/26/2024 1:14:08 PM
(n) Swap Contracts to the extent permitted pursuant to Section 6.03(d);
(ko) so long as no Event of Default has occurred and is continuing or would be caused thereby, other Investments; provided that, in no event shall the aggregate amount of Investments made as a result outstanding at any time pursuant to this Section 6.02(o) during the term of this Agreement (net of any returns of capital on such Investments) exceed the sum of (1) the greater of (x) $10,000,000 and (y) 25% of Consolidated EBITDA of the receipt Parent Guarantor, the Borrower and the Restricted Subsidiaries based on the most recent financial statements delivered under Section 5.01(a) or (b) or, prior to the time any such statements are first required to be so delivered pursuant to Section 5.01(a) or (b), the financial statements delivered pursuant to (1) prior to the Funding Date, Section 4.01(d)(i) and (2) on and after the Funding Date, Section 4.01(d)(i) and (ii) plus (2) an amount not to exceed the Available Amount at the time of noncash consideration from the making of such Investment plus (3) any Disposition Net Equity Proceeds; provided further, that notwithstanding the foregoing, no Investments may be made pursuant to this clause (o) during the Covenant Relief Period in excess of any asset in compliance with Section 6.04$1,000,000;
(lp) the Funding Date Acquisitions;
(q) Investments consisting of (i) extensions the non-exclusive licensing or sublicensing of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, in the ordinary course of business, and (iii) notes receivable of, or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made IP Rights in the ordinary course of business;
(mr) Investments consisting of the non-exclusive licensing or contribution of IP Rights pursuant to joint marketing arrangements with other Persons;
(s) unlimited Investments shall be permitted so long as (i) no Event of Default shall exist before or after giving effect to such Investment and other acquisitions(ii) the pro forma Total Leverage Ratio would be less than 3.00:1.00; provided that, at notwithstanding the time each such Investment or acquisition is purchasedforegoing, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed an amount equal to (i) the Available Equity Amount at such time, minus (ii) the sum of (A) the aggregate amount of no Investments may be made pursuant to this clause (ms) subsequent to during the Closing Date as of such time and (B) the aggregate amount of all Available Amount Expenditures based on usage of the Available Equity Amount subsequent to the Closing Date as of such time;
(n) other Investments and other acquisitions; provided that (A) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (B) at the time each such Investment or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor)Covenant Relief Period; and
(ot) other Investments made prior to the Second Amendment Effective Date in connection with the indirect acquisition of equity interests in Obagi Viet Nam Import Export Trading MTV Company Limited, a company incorporated in accordance with the laws of Vietnam. Notwithstanding anything to the contrary herein, the Parent Guarantor and other acquisitions; provided the Borrower will not, and will not permit any Restricted Subsidiary to, sell, lease, convey, assign, transfer or otherwise dispose (including pursuant to an exclusive license) of intellectual property that (A) no Specified Default or Event is material to the operation of Default shall have occurred the business of the Parent Guarantor, the Borrower and be continuing or would result therefrom and (B) at the time of and immediately after giving effect Restricted Subsidiaries, taken as a whole, to any such Investment or acquisitionAffiliate of the Borrower who is not a Loan Party (including any Unrestricted Subsidiary), the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis other than (in each casecase to the extent otherwise permitted pursuant to this Section 6.02) (x) licenses, as certified by a Responsible Officer sublicenses or cross-licenses of intellectual property in the ordinary course of business and which do not materially interfere with the business of the Obligor)Parent Guarantor, the Borrower and the Restricted Subsidiaries, taken as a whole and (y) any such disposition from a Restricted Subsidiary that is not a Loan Party to a Restricted Subsidiary that is not a Loan Party.
Appears in 1 contract
Samples: Credit Agreement (Waldencast PLC)
Investments. None of the ParentMake or hold any Investments, the Obligor or any other Restricted Subsidiary shall purchase or acquire (including pursuant to any merger or consolidation with any Person that was not a wholly-owned Restricted Subsidiary prior thereto), hold, make or otherwise suffer to exist any Investment in any other Person, or make any Acquisition, other thanexcept:
(a) Permitted Investmentsadvances to officers, directors and employees of the Borrower and its Restricted Subsidiaries for travel, entertainment, relocation and analogous ordinary business purposes;
(b) Investments in Restricted Subsidiaries to the extent existing on the Closing Date in Subsidiaries, and other Investments existing in existence on the Closing Date and set forth on Schedule 6.07 (but not any additions thereto (including any capital contributions) made after the Closing Date)7.03;
(c) investments by the Parent, the Obligor and the other Restricted Subsidiaries in Equity Interests in their Restricted Subsidiaries (including as capital contributions to such Restricted Subsidiaries); provided that Investments by: (i) such Restricted Subsidiaries are Restricted Subsidiaries of the Parent prior to such investments, a Loan Party in another Loan Party; (ii) any such Equity Interests held by a Borrower or a Guarantor in a Restricted Subsidiary that is not a Loan Party shall be pledged to the extent required by the definition of the term “Collateral and Guarantee Requirement” and so long as: (iiiA) the aggregate amount of such investments by the Loan Parties inInvestments, and loans and advances by the Loan Parties to, and Guarantees by the Loan Parties together with all Permitted Acquisitions of Indebtedness and other obligations of, Restricted Subsidiaries entities that are not Loan Parties (excluding all such investments, loans, advances or do not become Guarantors and Guarantees existing on the date hereof and permitted by clause (b) above) shall not, at any when made, exceed $15,000,000 at any time outstandingthe greater of (x) $20,000,000 and (y) 15% of IKE-Adjusted EBITDA as of the last day of the most recently ended four consecutive Fiscal Quarters for which financial statements have been delivered assets that do not become Collateral pursuant to Section 5.04(a) or 5.04(b) prior to the date of such Investment;
(d) loans or advances made by the Parent, the Obligor or any other Restricted Subsidiary to any Restricted Subsidiary; provided that (i) the Indebtedness resulting therefrom is permitted by clause (e) of the definition of “Permitted DebtAcquisitions” (other than in reliance on the Permitted Acquisition Leverage Condition), shall not exceed: $200,000,000, and (iiB) no Event of Default has occurred and is continuing at the amount time of such loans Investment, or would result therefrom; and advances made by the Loan Parties to Restricted Subsidiaries that are not Loan Parties shall be subject to the limitation set forth in clause (c)(iii) above;
(e) Guarantees by the Parent, the Obligor or any other Restricted Subsidiary of Indebtedness or other obligations of the Parent, the Obligor or any other Restricted Subsidiary (including any such Guarantees arising as a result of any such Person being a joint and several co-applicant with respect to any Letter of Credit or any other letter of credit or letter of guaranty); provided that (i) a Restricted Subsidiary shall not Guarantee any Material Indebtedness unless such Restricted Subsidiary has Guaranteed the Obligations pursuant to the Guaranty Agreement, (iiiii) a Restricted Subsidiary that has is not Guaranteed the Obligations pursuant a Borrower or Guarantor in any other Restricted Subsidiary; provided that any intercompany loan from a Loan Party to the Guaranty Agreement shall not Guarantee any Indebtedness Borrower or other obligations of any Loan Party, (iii) the Parent shall not Guarantee any Indebtedness or other obligation of any Restricted Subsidiary except shall be documented by an intercompany note in form and substance reasonably satisfactory to the Administrative Agent and such intercompany note shall be pledged to the Administrative Agent (for any such Guarantees under the Bond Documents or of Indebtedness permitted by clause (b) or (e) benefit of the definition of the term “Permitted Debt”, and (iv) the aggregate amount of Indebtedness and other obligations of Restricted Subsidiaries that are not Loan Parties that is Guaranteed by any Loan Party shall be subject to the limitation set forth in clause (c)(iii) aboveSecured Parties);
(f) Investments in the form of Hedge Agreements permitted under Section 6.12;
(g) Permitted Acquisitions;
(h) Any payroll, travel, entertainment, relocation and similar advances to directors, officers and employees of any Group Member that are expected at the time of such advances to be treated as expenses of such Group Member for accounting purposes and that are made in the ordinary course of business;
(i) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, or in connection with the satisfaction or enforcement of claims due or owing to any Group Member, in each case in the ordinary course of business;
(j) Investments held by any Restricted Subsidiary the Equity Interests in which are acquired after the Closing Date in compliance with this Section 6.07 or held by any Person merged into or consolidated with any Group Member after the Closing Date in compliance with Section 6.06 and this Section 6.07, in each case, so long as such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(k) Investments made as a result of the receipt of noncash consideration from any Disposition of any asset in compliance with Section 6.04;
(ld) Investments consisting of (i) extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit, (ii) deposits made in connection with the purchase of goods or services or the performance of leases, licenses or contracts, in each case, credit in the ordinary course of business, and (iii) notes receivable of, Investments received in satisfaction or prepaid royalties and other extensions of credit to, customers and suppliers that are not Affiliates of any Group Member and that are made partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in the ordinary course of businessorder to prevent or limit loss;
(me) other Investments and other acquisitions; provided that, at the time each such Investment or acquisition is purchased, made or consisting of Permitted Acquisitions;
(f) Investments pursuant to Swap Contracts otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause permitted hereunder;
(g) Investments in Cash Equivalents;
(h) so long as no Event of Default has occurred and is continuing or would result therefrom, any other Investments made after the definition of “Permitted Acquisition”) shall Closing Date in an aggregate amount not to exceed an amount equal to $150,000,000 at any time outstanding;
(i) the Available Equity Amount at such time[reserved];
(j) Investments, minus so long as: (i) no Default or Event of Default has occurred and is continuing or would result therefrom; (ii) the sum of amount expended in connection with any such Investment is made solely using Top Golf Proceeds, (Aiii) the aggregate amount of expended in connection with all such Investments made pursuant to consummated under this clause (mj) subsequent to and transactions consummated under Section 7.06(g) does not exceed $150,000,000 in the Closing Date as of such time and aggregate; (Biv) the aggregate Borrower provides the Administrative Agent with at least 7 days prior written notice of any such Investment (which notice shall contain the amount of all Available Amount Expenditures based on usage to be expended in such transaction and evidence of the Available Equity Amount subsequent to source of funds for such expenditure); (v) the Closing Date as Borrower provides the Administrative Agent with evidence of such timethe making of any Investment under this clause (j);
(ni ) other the Top Golf Acquisition (including the designation of Top Golf and its subsidiaries as Unrestricted Subsidiaries hereunder) and (ii) additional Investments in Top Golf in an amount not to exceed $30,000,000230,000,000 in the aggregate at any time so long as at the time of any such Investment under this clause (ii), no Default or Event of Default has occurred and other acquisitions; is continuing or would result therefrom;
(l) unlimited Investments provided that after giving effect thereto (Ai) no Specified Default or Event of Default shall have occurred and be continuing or would result therefrom and (Bii) at the time each such Investment Consolidated Total Net Leverage Ratio is equal to or acquisition is purchased, made or otherwise acquired, the aggregate amount of such Investment or the aggregate amount of all consideration paid in connection with such acquisition (determined as set forth in clause (g) of the definition of “Permitted Acquisition”) shall not exceed the Available Amount at such time (in each case, as certified by a Responsible Officer of the Obligor)less than 2.00 to 1.00; and
(om) other Investments and other acquisitionsin an amount not to exceed the portion of the Available Amount on the date of such election that the Borrower elects to apply to this Section 7.03(m); provided that (A) after giving effect thereto no Specified Default or Event of Default shall have occurred and be continuing continuing;
(n) Investments consisting of (i) the non-exclusive licenses of, and non-exclusive rights to use, intellectual property pursuant to joint marketing or would result therefrom other similar arrangements with other Persons so long as such licenses and rights to use do not interfere in any material respect with the business of Borrower and its Restricted Subsidiaries, taken as a whole, and (Bii) at Dispositions permitted by Section 7.05(f); and
(o) Investments consisting of intercompany current liabilities incurred in the time ordinary course of business in connection with the cash management, tax and immediately after giving effect to any such Investment or acquisition, the Total Adjusted Net Leverage Ratio shall not exceed the Specified Total Adjusted Net Leverage Ratio on a pro forma basis (in each case, as certified by a Responsible Officer accounting operations of the Obligor)Borrower and its Subsidiaries in an aggregate amount not to exceed $10,000,000 in any fiscal year of the Borrower when combined with any Indebtedness incurred pursuant to Section 7.02(t) during such fiscal year.
Appears in 1 contract
Samples: Credit Agreement (Callaway Golf Co)
