Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments"), any Person, except: (a) extensions of trade credit in the ordinary course of business; (b) Investments in Cash Equivalents; (c) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance; (d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance; (e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance; (f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstanding; (g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; and (h) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6.
Appears in 6 contracts
Samples: Credit Agreement (Sprint Spectrum L P), Credit Agreement (Sprint Spectrum Finance Corp), Credit Agreement (Sprint Spectrum L P)
Limitation on Investments, Loans and Advances. Make The Borrower shall not, and shall not permit any of its Included Subsidiaries to, make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advancesany of the foregoing, loans, extensions of credit, capital contributions, purchases and investments being herein called an "InvestmentsINVESTMENT"), any Person, exceptexcept for:
(a) investments in marketable securities, liquid investments and other financial instruments that are acquired for investment purposes and that have a value which may be readily established, including any such investment that may be readily sold or otherwise liquidated in any Fund or in any investment company managed by any Joint Venture pursuant to an investment advisory agreement;
(b) any investment in any Included Subsidiary of the Borrower or in any other Person principally engaged in the business of providing investment advisory services and related (including distribution and shareholder servicing) services, PROVIDED that, after giving effect to any such investment in any such other Person, such other Person is a Subsidiary or a Joint Venture;
(c) any investment in any Banking Subsidiary or in any other Person which, after giving effect to any such investment, is a Banking Subsidiary;
(d) extensions of trade credit in the ordinary course of business;
(be) Investments in Cash Equivalents;
(c) any Investment by loans to officers of the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired of its Subsidiaries consistent with (I) proceeds past practices of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurredSubsidiaries, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower or its Subsidiaries for travel, entertainment and its Restricted Subsidiaries relocation expenses in the ordinary course of business;
(f) investments in the Finance Subsidiary;
(g) investments constituting non-cash consideration received in connection with an Asset Disposition, PROVIDED that such non-cash consideration shall not exceed 25% of the aggregate principal consideration received for such Asset Disposition; and PROVIDED FURTHER that the aggregate amount outstanding of any such non-cash consideration with respect to Asset Dispositions shall not to exceed $10,000,000 at any one time outstanding;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; and
(h) promissory notes other investments in an aggregate amount as to the Borrower and its Subsidiaries (other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6than the Banking Subsidiaries and the Finance Subsidiary) not exceeding $125,000,000 for the period since the Closing Date.
Appears in 4 contracts
Samples: 364 Day Facility Credit Agreement (Franklin Resources Inc), 364 Day Facility Credit Agreement (Franklin Resources Inc), 364 Day Facility Credit Agreement (Franklin Resources Inc)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments"), any Person, except:
(a) extensions of trade credit in the ordinary course of businessbus- iness;
(b) Investments in Cash Equivalents;
(c) any Investment Investments by the Borrower or any Restricted Subsidiary (other than any a Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance; and provided, further, that the aggregate amount of cash expended, plus the aggregate book value of any assets transferred, by the Borrower and its Restricted Subsidiaries in connection with Investments permitted under this paragraph in Persons that are not Restricted Subsidiaries shall not exceed $100,000,000;
(d) any Investment Investments by the Borrower or any Restricted Subsidiary (other than any a Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) Investments by the Borrower or any Investment Restricted Subsidiary (other than a Special Purpose Subsidiary) arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that that, (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment Investment, the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstanding;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any the Special Purpose SubsidiarySubsidiaries) in any other Restricted Subsidiary; and
(h) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6.
Appears in 4 contracts
Samples: Credit Agreement (Sprint Spectrum L P), Credit Agreement (Sprint Spectrum L P), Credit Agreement (Sprint Spectrum Finance Corp)
Limitation on Investments, Loans and Advances. Make Without the consent of the Purchaser, Appia shall not, and Appia shall not permit any of its Subsidiaries to, make any advance, loan, extension of credit credit, or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of of, or any assets constituting a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any PersonPerson (an “Investment”), except:
(a) investments in cash, federally insured deposit accounts and Cash Equivalents;
(b) securities held by Appia or any of its Subsidiaries prior to the Closing Date and listed on Schedule 8.15;
(c) Investments by Appia in any wholly-owned Subsidiary and Investments by any such wholly-owned Subsidiary in Appia or in any other wholly-owned Subsidiary;
(d) extensions of trade credit and endorsements of negotiable instruments and other negotiable documents in the ordinary course of business;
(be) Investments in Cash Equivalents;
(c) any Investment by the Borrower loans or advances to employees, officers or directors of Appia or any Restricted Subsidiary (other than of its Subsidiaries, or guarantee the payment of any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related theretosuch loan granted by a third party, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower for Appia and its Restricted Subsidiaries does not to exceed Fifty Thousand Dollars (x$50,000) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Complianceoutstanding;
(f) loans Investments (including debt obligations) received in connection with the bankruptcy or reorganization of customers or suppliers and advances to employees in settlement of delinquent obligations of, and other disputes with, customers or suppliers arising in the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstandingordinary course of a Appia’s business;
(g) Investments by the Borrower in its Restricted Subsidiaries consisting of notes receivable of, or prepaid royalties and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) credit extensions, to customers and suppliers who are not Affiliates, in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiaryordinary course of business, provided that this Section 8.15(g) shall not apply to Investments of Appia in any other Restricted Subsidiary;
(h) Additional Investments in an aggregate amount not to exceed One Hundred Thousand and 00/100 Dollars ($100,000.00) at any time outstanding; and
(hi) promissory notes Up to One Million and other deferred payment obligations 00/100 Dollars ($1,000,000) of Investments in the aggregate in one or more Persons who, in connection with such Investments, become direct or indirect wholly-owned Subsidiaries of Appia; provided that constitute proceeds no more than Four Hundred Thousand and 00/100 Dollars ($400,000) of Asset Sales that are permitted by subsection 6.6such Investment shall be funded with cash or Cash Equivalents.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Digital Turbine, Inc.), Securities Purchase Agreement (Mandalay Digital Group, Inc.), Merger Agreement (Mandalay Digital Group, Inc.)
Limitation on Investments, Loans and Advances. Make any advance, --------------------------------------------- loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting all or a material part of a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in Cash Equivalents;
(c) any Investment Guarantee Obligations permitted by Section 7.2;
(d) the Acquisition;
(e) investments made by the Borrower or any Restricted Subsidiary of its Subsidiaries with the proceeds of any Reinvestment Deferred Amount resulting from a Recovery Event;
(other than f) investments by Holdings, the Borrower or any Special Purpose Subsidiary) in Persons engaged of its Subsidiaries in the telecommunications business Borrower or businesses related theretoa Wholly Owned Subsidiary Guarantor;
(g) other investments constituting Permitted Acquisitions, provided that the aggregate consideration for all Permitted Acquisitions while this Agreement is in effect shall not exceed $30,000,000 unless the Borrower shall have obtained the prior written consent of the Required Lenders;
(h) so long as no Default or Event of Default shall have occurred and be continuing, the Borrower and any Subsidiary may make investments in or loans to, or create, any Specified Entity (by way of capital contribution or otherwise), provided that (ix) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds the requirements of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be Section 6.9 are satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (By) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of all investments in or loans to such Investments then held by the Borrower and its Restricted Subsidiaries does Specified Entities shall not exceed (x) $2,000,000 minus the aggregate principal amount of any Indebtedness of any Specified Entity at any such time prior outstanding in accordance with Section 7.2(h) and (z) no such investments shall be made in and no such loans shall be made to (other than loans to Xxxxx Services Company in an aggregate principal amount not to exceed $275,000) any Joint Ventures subsequent to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma ComplianceClosing Date;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees or directors of the Borrower made pursuant to a form of promissory note provided to the Administrative Agent prior to the date hereof (with any such changes as are reasonably satisfactory to the Administrative Agent) and its Restricted Subsidiaries made solely to fund purchases of Capital Stock of Holdings to the extent the proceeds therefrom are concurrently received by Holdings and contributed to the Borrower, in an aggregate principal amount outstanding not to exceed $10,000,000 500,000 at any one time outstanding;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; and
(hj) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are in addition to investments otherwise expressly permitted by subsection 6.6this Section 7.8, so long as no Default or Event of Default shall have occurred and be continuing, investments by the Borrower or any of its Subsidiaries in an aggregate amount (valued at cost) not to exceed $2,000,000 during the term of this Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Nationwide Credit Inc), Credit Agreement (Nationwide Credit Inc)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advancesincluding, loanswithout limitation, extensions any acquisition of creditall or any substantial portion of the assets, capital contributionsand any acquisition of a business or a product line, purchases and investments being herein called "Investments"of other companies, other than the acquisition of inventory in the ordinary course of business), any PersonPerson (except to the extent permitted by subsection 8.7 or 8.11), except:
(a) extensions loans or advances, to the extent, in each case, the Indebtedness created thereby is permitted by subsection 8.1(b);
(b) the Bermuda Borrower or any Subsidiary of the Bermuda Borrower may make investments in, or create, any other Subsidiary of the Bermuda Borrower (by way of capital contribution or otherwise) provided that (i) the requirements of Section 7.9 are satisfied and (ii) the aggregate amount of investments made by Credit Parties in Tier 2 Foreign Entities (except for investments otherwise permitted under this Section 8.6) shall not exceed $20,000,000 plus the sum of any amounts dividended or distributed by any Tier 2 Foreign Entity to any Credit Party (not retransferred to a Tier 2 Foreign Entity) less the sum of (A) the aggregate outstanding amount of any Indebtedness of Tier 2 Foreign Entities owed to Credit Parties pursuant to Section 8.1(d) and (B) the aggregate amount of any obligations of Tier 2 Foreign Entities guaranteed by Credit Parties pursuant to Section 8.3(c) and, provided further that the Bermuda Borrower and its Subsidiaries may make investments in the Bermuda Borrower and its Subsidiaries financed with contributions of equity after the Closing Date directly or indirectly from Bermuda Holdings or the other Permitted Holders and such investments shall be permitted hereunder, to the extent such equity proceeds are not used to finance acquisitions pursuant to this subsection 8.6;
(c) the Bermuda Borrower and its Subsidiaries may (i) invest in, acquire and hold Cash Equivalents and Investment Grade Securities and (ii) make loans in an aggregate amount at any time outstanding not to exceed $2,400,000 in connection with a sale of assets permitted by subsection 8.5;
(d) the Bermuda Borrower and its Subsidiaries may make payroll advances in the ordinary course of business (including advances against commissions) not to exceed $600,000;
(e) the Bermuda Borrower and its Subsidiaries may acquire and hold receivables owing to them, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade credit terms (provided that nothing in this clause (e) shall prevent the Bermuda Borrower or any of its Subsidiaries from offering such concessionary trade terms, or from receiving such investments, in connection with the bankruptcy or reorganization of their respective suppliers or customers or the settlement of disputes with such customers or suppliers arising in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged , as management deems reasonable in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliancecircumstances);
(f) the Bermuda Borrower and its Subsidiaries may make travel and entertainment advances and relocation and other loans to officers and advances to employees of the Borrower and its Restricted Subsidiaries in an or any such Subsidiary; provided that the aggregate principal amount of all such loans and advances outstanding at any one time, together with the guarantees of such loans and advances made pursuant to subsection 8.3(e), shall not to exceed $10,000,000 6,000,000 at any one time outstanding;
(g) Investments the Borrowers and their respective Subsidiaries may make expenditures to acquire all or a portion of the Capital Stock or assets of any Person engaged primarily in one or more businesses in which the Borrowers and their Subsidiaries are engaged or directly related thereto; provided that, after giving pro forma effect to any such acquisition and the financing thereof, (i) either (A) the amount of the expenditures in connection with such acquisition does not exceed $35,000,000 individually or $100,000,000 during the term of this Agreement, in any case without the prior written consent of the Required Lenders (provided that additional expenditures in connection with permitted acquisitions funded with the proceeds of any concurrent issuance of Capital Stock by Bermuda Holdings or the Borrowers shall be permitted in an amount up to $100,000,000 in the aggregate (to the extent not used to increase the Base Amount of Capital Expenditures permitted under subsection 8.7 for any period and not required to be used to prepay the Loans pursuant to subsection 4.4(b)(i))) and/or (B) the Borrowers elect (by prior written notice to the Administrative Agent) to treat all or a portion of such expenditures as “Capital Expenditures” for the purposes of this Agreement, including, but not limited to Section 8.7, and such expenditures are permitted under Section 8.7; (ii) the provisions of subsection 7.4 or 7.9 are satisfied; (iii) the Borrowers are in compliance with subsections 8.9 and 8.10 as of the end of the immediately preceding fiscal quarter for which the appropriate financial information is available, provided that the last four fiscal quarters of Consolidated EBITDA (as may be adjusted for identified post acquisition cost savings reasonably agreed to by the Borrowers and the Administrative Agent) of each acquired company, business or group of assets during the testing period shall be added for purposes of determining compliance with such subsections (and, upon request of the Administrative Agent, the Borrowers shall deliver documentation reasonably necessary to demonstrate such compliance); and (iv) no Default or Event of Default has occurred and is continuing or would result therefrom;
(i) the Bermuda Borrower and its Subsidiaries may make investments in, or loans or investments to, joint ventures or other Persons engaged primarily in one or more businesses in which the Borrowers and their Subsidiaries are engaged or generally related thereto or (ii) make expenditures in connection with the development and integration of technology of the Bermuda Borrower and its Restricted Subsidiaries in connection with an agreement or other arrangement with a third party (any such expenditures shall be deemed not to be operating expenses for all purposes under this Agreement), in an aggregate amount in respect of clauses (i) and Investments (ii) not to exceed $25,000,000 without the prior written consent of the Required Lenders, (plus the sum of (x) any amounts dividended or distributed to the Borrowers or any Subsidiary Guarantor (whichever party is making such investment, loan or expenditure) by such joint venture or other Person, (y) the net cash proceeds of any Restricted issuance of Capital Stock by the Bermuda Borrower, or any capital contribution to HubCo or the Bermuda Borrower, which was not required to be used to prepay the Loans pursuant to subsection 4.4(b)(i), and which has not been used to increase the Base Amount of Capital Expenditures permitted under Section 8.7 for any period and (z) any amounts from sales or dispositions permitted by subsection 8.5(m)); provided that at the time of and after giving effect thereto no Default or Event of Default shall have occurred and be continuing or would result therefrom;
(i) from the Closing Date until the First Amendment Effective Date, the Credit Parties (as defined in the Original Credit Agreement) may purchase and hold Capital Stock of Holdings pursuant to the Refinancing;
(j) the Bermuda Borrower and its Subsidiaries may make investments in the form of stock, obligations or securities received by such Person in satisfaction of judgments, foreclosure of liens or settlement of debts in favor of the Bermuda Borrower or such Subsidiary (whether pursuant to a plan of reorganization or similar arrangement);
(k) any securities or assets received or other than investments made as a result of the receipt of non-cash consideration from any Special Purpose Subsidiarydisposition of assets permitted by subsection 8.5;
(l) the purchase of all the Capital Stock or all or substantially all the assets of a company in the Borrower or by any Restricted Subsidiary telecommunications sector previously disclosed to the Administrative Agent for an aggregate price not in excess of $20,000,000;
(other than any Special Purpose Subsidiarym) in any other Restricted SubsidiaryHubCo and its Subsidiaries may make investments required to consummate the Corporate Restructuring; and
(hn) promissory notes the U.S. Borrower may purchase outstanding Senior Notes in connection with the Refinancing and from time to time thereafter with respect to such Senior Notes that have not been tendered on the Closing Date. For purposes of this subsection 8.6, the payment, or intercompany loans or advances for such purpose, by the Bermuda Borrower or any Subsidiary of expenses and operating costs of the Bermuda Borrower or any Subsidiary (x) incurred in the ordinary course of business (provided that, any such payment by the Bermuda Borrower or any Subsidiary of expenses and operating costs of Foreign Subsidiaries of the U.S. Borrower pursuant to this clause shall be promptly repaid by such Foreign Subsidiaries as soon as such Foreign Subsidiaries have funds available to make such repayment) or (y) incurred in association with the initial establishment, start up and capitalization of Subsidiaries of the Bermuda Borrower shall not be considered to be a loan, advance, dividend or other deferred payment obligations that constitute proceeds of Asset Sales that are investment, and shall be permitted by subsection 6.6under this Agreement and such payments shall not reduce any permitted amounts to be so made as specified herein.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Stratus Technologies Bermuda Holdings Ltd.), Second Lien Credit Agreement (Stratus Technologies Bermuda Holdings Ltd.)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting all or a material part of a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in Cash Equivalents;
(c) any Investment Guarantee Obligations permitted by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma ComplianceSection 7.2;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of Holdings, the Borrower or its Subsidiaries in the ordinary course of business (including, without limitation, for travel, entertainment and relocation expenses) in an aggregate amount for Holdings, the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 500,000 at any one time outstanding;
(e) investments made by the Borrower or any of its Subsidiaries with the proceeds of any Reinvestment Deferred Amount;
(f) investments by Holdings, the Borrower or any of its Subsidiaries in the Borrower or any Person that, prior to such investment, is a Wholly Owned Subsidiary Guarantor; and
(g) Investments acquisitions by the Borrower or any of its Subsidiaries of the Capital Stock of, or assets of, entities engaged in similar lines of business as the Borrower and its Subsidiaries on the Closing Date, provided that (i) the aggregate purchase price for all such acquisitions occurring after the Closing Date shall not exceed $65,000,000, (ii) the aggregate purchase price for all such acquisitions shall not exceed $15,000,000 in any fiscal year of the Borrower, (iii) no Default or Event of Default shall have occurred or be continuing after giving effect to any such acquisition, (iv) no Indebtedness shall be assumed by the Borrower or any of its Subsidiaries in connection with any such acquisition except to the extent otherwise permitted pursuant to this Agreement and (v) the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.1 after giving effect to any such acquisition;
(h) investments existing on the Closing Date and listed on Schedule 7.8;
(i) investments and advances made by the Borrower in its Restricted Subsidiaries and Investments Holdings to the extent permitted by any Restricted Subsidiary Section 7.6(b), (other than any Special Purpose Subsidiaryc) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiaryd); and
(hj) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6investments in an aggregate amount not to exceed $5 million at any one time outstanding.
Appears in 2 contracts
Samples: Credit Agreement (Nebraska Book Co), Credit Agreement (NBC Acquisition Corp)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting all or a material part of a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in Cash Equivalents;
(c) any Investment Guarantee Obligations permitted by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma ComplianceSection 7.2;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of Holdings, the Borrower or its Subsidiaries in the ordinary course of business (including, without limitation, for travel, entertainment and relocation expenses) in an aggregate amount for Holdings, the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 500,000 at any one time outstanding;
(e) investments made by the Borrower or any of its Subsidiaries with the proceeds of any Reinvestment Deferred Amount;
(f) investments by Holdings, the Borrower or any of its Subsidiaries in the Borrower or any Person that, prior to such investment, is a Wholly Owned Subsidiary Guarantor; and
(g) Investments acquisitions by the Borrower or any of its Subsidiaries of the Capital Stock of, or assets of, entities engaged in similar lines of business as the Borrower and its Subsidiaries on the Closing Date, provided, that (i) the aggregate purchase price for all such acquisitions occurring after the Closing Date shall not exceed $60,000,000 (plus common equity or preferred equity having terms satisfactory to the Administrative Agent (or the net cash proceeds of such equity) issued by SuperHoldings to finance such acquisition, (ii) the aggregate purchase price for all such acquisitions shall not exceed $20,000,000 (plus common equity or preferred equity having terms satisfactory to the Administrative Agent (or the net cash proceeds of such equity) issued by SuperHoldings to finance such acquisition) in any fiscal year of the Borrower, (iii) no Default or Event of Default shall have occurred or be continuing after giving effect to any such acquisition, (iv) no Indebtedness shall be assumed by the Borrower or any of its Subsidiaries in connection with any such acquisition except to the extent otherwise permitted pursuant to this Agreement, (v) both immediately before and immediately after giving pro forma effect thereto (a) the Consolidated Fixed Charge Coverage Ratio is at least 1.20 to 1.00 (determined on a Pro Forma Basis in respect of the most recent period of twelve consecutive fiscal months for which financial statements are available) and (b) Availability (determined on a Pro Forma Basis) for the six-month period preceding the consummation of such acquisition shall not have been less than 25% of the Total Revolving Credit Commitments, and (vi) all such acquisitions after the Closing Date shall be limited to acquisitions of the Capital Stock of, or assets of, contract-managed stores engaged in similar lines of business as the Borrower and its Subsidiaries on the Closing Date;
(h) investments existing on the Closing Date and listed on Schedule 7.7;
(i) investments and advances made by the Borrower in its Restricted Subsidiaries and Investments Holdings to the extent permitted by any Restricted Subsidiary Section 7.6(b), (other than any Special Purpose Subsidiaryc) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiaryd); and
(hj) promissory notes other investments in an aggregate amount not to exceed $5,000,000 at any one time outstanding; provided that both immediately before and other deferred payment obligations that constitute proceeds immediately after giving pro forma effect thereto (a) the Consolidated Fixed Charge Coverage Ratio for the Test Period in effect at the time such investment is made is at least 1.20 to 1.00 (determined on a Pro Forma Basis in respect of Asset Sales that are permitted by subsection 6.6the Test Period in effect at such time) and (b) Availability shall not be less than 25% of the Total Revolving Credit Commitments.
Appears in 2 contracts
Samples: Credit Agreement (Nebraska Book Co), Credit Agreement (NBC Acquisition Corp)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting all or a material part of a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in Cash Equivalents;
(c) any Investment Guarantee Obligations permitted by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma ComplianceSection 7.2;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of Holdings, the Borrower or its Subsidiaries in the ordinary course of business (including, without limitation, for travel, entertainment and relocation expenses) in an aggregate amount for Holdings, the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 500,000 at any one time outstanding;
(e) investments made by the Borrower or any of its Subsidiaries with the proceeds of any Reinvestment Deferred Amount;
(f) investments by Holdings, the Borrower or any of its Subsidiaries in the Borrower or any Person that, prior to such investment, is a Wholly Owned Subsidiary Guarantor; and
(g) Investments acquisitions by the Borrower or any of its Subsidiaries of the Capital Stock of, or assets of, entities engaged in similar lines of business as the Borrower and its Subsidiaries on the Closing Date, provided, that (i) the aggregate purchase price for all such acquisitions occurring after the Closing Date shall not exceed $60,000,000 (plus common equity or preferred equity having terms satisfactory to the Administrative Agent (or the net cash proceeds of such equity) issued by SuperHoldings to finance such acquisition, (ii) the aggregate purchase price for all such acquisitions shall not exceed $20,000,000 (plus common equity or preferred equity having terms satisfactory to the Administrative Agent (or the net cash proceeds of such equity) issued by SuperHoldings to finance such acquisition) in any fiscal year of the Borrower, (iii) no Default or Event of Default shall have occurred or be continuing after giving effect to any such acquisition, (iv) no Indebtedness shall be assumed by the Borrower or any of its Subsidiaries in connection with any such acquisition except to the extent otherwise permitted pursuant to this Agreement, (v) both immediately before and immediately after giving pro forma effect thereto (a) the Consolidated Fixed Charge Coverage Ratio is at least 1.20 to 1.00 (determined on a Pro Forma Basis in respect of the most recent period of twelve consecutive fiscal months for which financial statements are available) and (b) Availability (determined on a Pro Forma Basis) for the six-month period preceding the consummation of such acquisition shall not have been less than 25% of the Total Revolving Credit Commitments, and (vi) all such acquisitions after the Closing Date shall be limited to acquisitions of the Capital Stock of, or assets of, stores engaged in similar lines of business as the Borrower and its Subsidiaries on the Closing Date;
(h) investments existing on the Closing Date and listed on Schedule 7.7;
(i) investments and advances made by the Borrower in its Restricted Subsidiaries and Investments Holdings to the extent permitted by any Restricted Subsidiary Section 7.6(b), (other than any Special Purpose Subsidiaryc) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiaryd); and
(hj) promissory notes other investments in an aggregate amount not to exceed $5,000,000 at any one time outstanding; provided that both immediately before and other deferred payment obligations that constitute proceeds immediately after giving pro forma effect thereto (a) the Consolidated Fixed Charge Coverage Ratio for the Test Period in effect at the time such investment is made is at least 1.20 to 1.00 (determined on a Pro Forma Basis in respect of Asset Sales that are permitted by subsection 6.6the Test Period in effect at such time) and (b) Availability shall not be less than 25% of the Total Revolving Credit Commitments.
Appears in 2 contracts
Samples: Credit Agreement (NBC Acquisition Corp), Credit Agreement (Nebraska Book Co)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment investment, in cash or by transfer of assets or property, in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments"each an “Investment”), any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in cash and Cash Equivalents;
(c) any Investment by Investments existing on the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) Closing Date and described in Persons engaged in Schedule 8.9(c), setting forth the telecommunications business or businesses related thereto, provided that (i) respective amounts of such Person, if it shall be Investments as of a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliancerecent date;
(d) Investments in notes receivable and other instruments and securities obtained in connection with transactions permitted by subsection 8.6(c);
(e) loans and advances to officers, directors or employees of Holding or any of its Subsidiaries (i) in the ordinary course of business for travel and entertainment expenses, (ii) existing on the Closing Date and described in Schedule 8.9(c), (iii) made after the Closing Date for relocation expenses in the ordinary course of business, (iv) made for other purposes in an aggregate amount (as to Holding and all of its Subsidiaries), together with the aggregate amount of all Guarantee Obligations permitted pursuant to subsection 8.4(f)(iii), of up to $7,500,000 outstanding at any time and (v) relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity or as otherwise specified in subsection 8.11;
(f) (i) Investments by the Parent Borrower in its Wholly Owned Subsidiaries (other than any Receivables Subsidiary) and by such Wholly Owned Subsidiaries of the Parent Borrower and in Wholly Owned Subsidiaries of the Parent Borrower (other than any Receivables Subsidiary) and (ii) Investments in Holding in amounts and for purposes for which dividends are permitted under subsection 8.7;
(g) acquisitions expressly permitted by subsection 8.10;
(h) Investments of the Parent Borrower and its Subsidiaries under Interest Rate Protection Agreements or under Permitted Hedging Arrangements;
(i) Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business or otherwise described in subsection 8.3(c), (d) or (f);
(j) Investments representing non-cash consideration received by the Parent Borrower or any of its Subsidiaries in connection with any Asset Sale, provided that in the case of any Asset Sale permitted under subsection 8.6(h) or (i), such non-cash consideration constitutes not more than 25% of the aggregate consideration received in connection with such Asset Sale and any such non-cash consideration received by the Parent Borrower or any of its Domestic Subsidiaries is pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documents;
(k) any Investment by the Parent Borrower and its Subsidiaries in a Receivables Subsidiary which, in the judgment of the Parent Borrower, is prudent and reasonably necessary in connection with, or otherwise required by the terms of, any Permitted Receivables Transaction;
(l) Investments by the Parent Borrower or any Restricted of its Subsidiaries in a Person in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or such Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the an aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not to exceed (x) at any time prior an amount equal to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization20,000,000; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets amount shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in increased by an amount equal to $5,000,000 on each anniversary of the Closing Date, so long as no Default or Event of Default shall have occurred and be continuing on any date on which such Investment and (B) the Borrower designates such Personamount is to be increased, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior such amount and after giving effect to any increase in such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition amount permitted by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that clause (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if reduced by the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstanding;
(g) Investments by the Borrower of Indebtedness in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; and
(h) promissory notes and other deferred payment obligations that constitute proceeds respect of Asset Sales that are Guarantee Obligations permitted by subsection 6.6.by
Appears in 2 contracts
Samples: Credit Agreement (VWR International, Inc.), Credit Agreement (VWR International, Inc.)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of of, or any assets constituting a business unit of, or make or maintain any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any PersonPerson (all of the foregoing, “Investments”), except:
(a) extensions (i) loans or advances by the Borrower or any of trade credit its Restricted Subsidiaries in respect of intercompany accounts attributable to the operation of the Borrower’s cash management system and (ii) loans or advances by the Borrower or any of its Restricted Subsidiaries to a Subsidiary Guarantor (or a Restricted Subsidiary that would be a Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Subsidiary Guarantor);
(b) Investments by the Borrower and its Restricted Subsidiaries in Subsidiaries of the Borrower that are not Subsidiary Guarantors; provided that at all times the aggregate amount of all such Investments, together with any guarantees by the Borrower and its Restricted Subsidiaries of Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, shall not exceed $20,000,000;
(c) Investments by the Borrower and the Restricted Subsidiaries, not otherwise described in this subsection 8.7, in the Borrower or in Subsidiary Guarantors (or a Subsidiary that would be a Subsidiary Guarantor but for the lapse of time until such Subsidiary is required to be a Subsidiary Guarantor) that otherwise are not prohibited under the terms of this Agreement;
(d) any Restricted Subsidiary of the Borrower may make Investments in the Borrower (by way of capital contribution or otherwise);
(e) the Borrower and its Restricted Subsidiaries may invest in, acquire and hold (i) Cash Equivalents and cash and (ii) other cash equivalents invested in or held with any financial institutions to the extent such amounts under this clause (ii) do not exceed $5,000,000 per individual institution and $25,000,000 in the aggregate at any one time;
(f) the Borrower or any of its Restricted Subsidiaries may make travel and entertainment advances and relocation loans in the ordinary course of business to officers, employees and agents of the Borrower or any such Restricted Subsidiary not to exceed $10,000,000 in the aggregate at any one time;
(g) the Borrower or any of its Restricted Subsidiaries may make payroll advances in the ordinary course of business;
(bh) Investments the Borrower or any of its Restricted Subsidiaries may acquire and hold receivables owing to it, if created or acquired in Cash Equivalentsthe ordinary course of business and payable or dischargeable in accordance with customary trade terms (provided that nothing in this clause shall prevent the Borrower or any Restricted Subsidiary from offering such concessionary trade terms, or from receiving such investments or any other investments in connection with the bankruptcy or reorganization of their respective suppliers or customers or the settlement of disputes with such customers or suppliers arising in the ordinary course of business, as management deems reasonable in the circumstances);
(ci) the Borrower and its Restricted Subsidiaries may make Investments in connection with asset sales permitted by subsection 8.6(e), (f) or (g) or to which the Required Lenders consent;
(j) existing Investments of the Borrower described in Schedule 8.7;
(k) the Borrower and its Restricted Subsidiaries may in a single transaction or series of related transactions, make acquisitions (by merger, purchase, lease (including any lease that contains up-front payments and/or buyout options) or otherwise) of any business, division or line of business or all or substantially all of the outstanding Capital Stock of any corporation or other entity (other than any director’s qualifying shares or any options for equity interests that cannot, as a matter of law, be cancelled, redeemed or otherwise extinguished without the express agreement of the holder thereof at or prior to acquisition) or any Station and Broadcast Assets related thereto as long as (i) immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing (provided that this clause (i) shall not apply with respect to any acquisition made pursuant to a legally binding commitment entered into at a time when no Default existed or would result from the making of such acquisition), (ii) as of the date of such acquisition, the Consolidated Senior Secured Net Leverage Ratio (determined on a pro forma basis, after giving effect to such acquisition and any incurrence of Indebtedness in connection therewith (but excluding the proceeds of any such Indebtedness in the calculation of unrestricted cash and Cash Equivalents)) is less than or equal to the greater of (A) the Consolidated Senior Secured Net Leverage Ratio as of the last day of the most recently ended fiscal quarter and (B) 5.0 to 1.0, (iii) all actions required to be taken with respect to any acquired assets or acquired or newly formed Subsidiary under subsection 7.10 shall be taken substantially simultaneously with consummation of such acquisition, (iv) any acquisition of an Unrestricted Subsidiary pursuant to this clause (k) shall be an Investment permitted by a provision of this subsection 8.7 (other than this clause (k)), (v) any such newly acquired Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by subsection 8.2 and (vi) the Borrower has delivered to the Administrative Agent a certificate of a Responsible Officer to the effect set forth in clauses (i) through (v) above, together with all relevant financial information for the Person or assets to be acquired; provided that the aggregate consideration (whether cash or property, as valued in good faith by the board of directors of the Borrower) given by the Borrower and its Restricted Subsidiaries for all acquisitions consummated after the Closing Date in reliance on this clause (k) of Persons that do not, upon the acquisition thereof, become Subsidiary Guarantors shall not exceed $25,000,000;
(i) Investments by the Borrower and any Restricted Subsidiaries in any business, division, line of business or Person acquired pursuant to a Permitted Acquisition so long as the conditions to the making of any Permitted Acquisition set forth in subsection 8.7(k) are satisfied mutatis mutandis with respect to the making of such Investment and (ii) Investments of any Person in existence at the time such Person becomes a Restricted Subsidiary pursuant to a Business Acquisition (provided that such Investment was not made in connection with or anticipation of such Person becoming a Restricted Subsidiary);
(m) the Borrower and its Restricted Subsidiaries may make loans or advances to, or acquisitions or other Investments in, other Persons (exclusive of (i) Unrestricted Subsidiaries and (ii) Persons which are, or become, Foreign Subsidiaries) that constitute or are in connection with joint ventures, provided the consideration paid by the Borrower or any of its Subsidiaries in all such transactions after the Closing Date, does not exceed in the aggregate $15,000,000;
(n) the Borrower and its Restricted Subsidiaries may make loans or advances to, or other Investments in, or otherwise transfer funds (including by way of repayment of loans or advances) to, Foreign Subsidiaries that are Restricted Subsidiaries (including new Foreign Subsidiaries that are to become Restricted Subsidiaries); provided that the consideration paid by the Borrower or any of its Restricted Subsidiaries in all transactions after the Closing Date (net, in the case of loans, advances, investments and other transfers, of any repayments or return of capital in respect thereof actually received in cash by the Borrower or its Restricted Subsidiaries (net of applicable taxes) after the Closing Date) does not exceed in the aggregate $5,000,000;
(o) the Borrower or any of its Restricted Subsidiaries may acquire obligations of one or more directors, officers, employees, members or management or consultants of any of the Borrower or its Restricted Subsidiaries in connection with such person’s acquisition of shares of the Borrower, so long as no cash is actually advanced by the Borrower or any of its Restricted Subsidiaries to such persons in connection with the acquisition of any such obligations;
(p) the Borrower and its Restricted Subsidiaries may acquire assets with the Net Proceeds from Asset Sales in accordance with the reinvestment rights provided under subsection 4.6(b);
(q) the Borrower and its Restricted Subsidiaries may acquire assets under a Permitted Asset Swap;
(r) the Borrower and its Restricted Subsidiaries may make other Investments in an aggregate amount not to exceed the Available Amount at such time;
(s) the Borrower and its Restricted Subsidiaries may purchase any Capital Stock of CMP not already owned by a Group Member on the Closing Date;
(t) the Borrower and its Restricted Subsidiaries may make Investments to the extent the consideration paid therefor consists solely of (i) Capital Stock, which is not Disqualified Stock, of any Restricted Subsidiary or (ii) the Net Proceeds of any substantially concurrent issuance of Capital Stock, which is not Disqualified Stock, by Parent or any Restricted Subsidiary (other than any Special Purpose Subsidiaryissuance the proceeds of which have been included in the calculation of the Available Amount to the extent such proceeds have been applied pursuant to the definition of “Available Amount” to make an Investment pursuant to subsection 8.7(r), a Restricted Payment pursuant to subsection 8.8(b) or a prepayment of Second Lien Loans or Second Lien Permitted Refinancings pursuant to subsection 8.15(b)(iii), have been applied for Restricted Payments under subsection 8.8(c) or subsection 8.8(h) or have been applied for prepayments of Indebtedness under subsection 8.15(b)(iv)); provided that, (x) immediately before and after making such Investment, no Default or Event of Default shall have occurred and be continuing), (y) in Persons engaged the case of clause (ii) in respect of an issuance by Parent, the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital thereof have been contributed by Parent in cash as common equity to the Borrower expressly for or such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Restricted Subsidiary and (z) in the case of clause (ii) immediately prior and after giving effect ), such issuance is to such Investment, the Borrower is in Pro Forma Compliance;a Person other than a Group Member; and
(du) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does may make other Investments not exceed to exceed, together with all other Investments made in reliance on this clause (x) at any time prior to u), the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% greater of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary $150,000,000 and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
lesser of (ex) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries 33% of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees consolidated total assets of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstanding;
(g) Investments by as of the most recently ended fiscal quarter of the Borrower for which financial statements have been delivered pursuant to subsection 7.1(a) or 7.1(b), as applicable, and (y) $450,000,000. For purposes of calculating the amount of any Investment, such amount shall equal (x) the amount actually invested less (y) any repayments, interest, returns, profits, dividends, distributions, income and similar amounts actually received in its Restricted Subsidiaries and Investments by any Restricted Subsidiary cash from such Investment (other than any Special Purpose Subsidiaryfrom dispositions or otherwise) (which amount referred to in this clause (y) shall not exceed the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; and
(h) promissory notes and other deferred payment obligations that constitute proceeds amount of Asset Sales that are permitted by subsection 6.6such Investment at the time such Investment was made).
Appears in 2 contracts
Samples: First Lien Credit Agreement (Cumulus Media Inc), First Lien Credit Agreement (Cumulus Media Inc)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, sell or contribute personal property or other assets to, or make any other investment in (such advances, loans, extensions all of credit, capital contributions, purchases and investments the foregoing being herein called "collectively referred to as “Investments"”), any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of such Person or its Subsidiaries for travel, entertainment and relocation expenses in the Borrower and its Restricted Subsidiaries ordinary course of business in an aggregate principal amount outstanding for Hanover and its Subsidiaries not to exceed $10,000,000 1,000,000 at any one time outstanding;
(d) Investments by Hanover in its Subsidiaries which are or become Credit Parties and investments by such Subsidiaries which are or become Credit Parties in other Subsidiaries of Hanover which are or become Credit Parties;
(e) Net Unqualified Subsidiary Investments not to exceed, in the aggregate, for each time period specified in the table set forth below, the cumulative amount specified in such table, provided that (i) at the time of each such Net Unqualified Subsidiary Investment, no Default or Event of Default shall have occurred and be continuing or result from such Net Unqualified Subsidiary Investment, (ii) all transactions related to such Net Unqualified Subsidiary Investment shall be consummated in accordance with applicable law, (iii) with respect to any acquired or newly formed Unqualified Subsidiary relating to such Net Unqualified Subsidiary Investment, such acquired or newly formed Unqualified Subsidiary shall take all actions required to be taken, if any, with respect to such acquired or newly formed Unqualified Subsidiary under the Loan Documents, (iv) Hanover shall be in compliance, on a pro forma basis after giving effect to such Net Unqualified Subsidiary Investment, with the covenants contained in Section 8.1 computed as at the last day of the fiscal quarter most recently ended prior to the delivery of the certificate required pursuant to this clause (iv), and Hanover shall have delivered to the Administrative Agent an officer’s certificate to such effect concurrently with the delivery of each certificate of a Responsible Officer pursuant to Section 7.2(b) hereof, together with all relevant financial information with respect to such Net Unqualified Subsidiary Investment, and (v) after giving effect to the consummation of the transactions contemplated by such Net Unqualified Subsidiary Investment, the Loans to be made and the Letters of Credit to be issued hereunder, the sum of (A) the cash and Cash Equivalents (to the extent such cash and Cash Equivalents are free of any Liens other than customary bankers’ liens, the Liens created pursuant to the Security Documents and other Liens that are expressly permitted to exist pursuant to the provisions of the Security Documents) then held by Hanover and its Qualified Subsidiaries and (B) the Available Commitments of all the Lenders hereunder equals at least $60,000,000. In the table set forth below, the column headed “Aggregate Dollar amount of cash and net book value of other assets” refers to the aggregate U.S. Dollar amount of cash and Cash Equivalents and (in the case of property and assets other than cash and Cash Equivalents) the net book value of such property and other assets that, in each case, are transferred, contributed, sold or otherwise conveyed by Hanover and its Qualified Subsidiaries to such Unqualified Subsidiaries of Hanover as Net Unqualified Subsidiary Investments during each time period as indicated. For the avoidance of doubt, (I) the amounts specified in the second column of the table set forth below are “cumulative” amounts (by way of example, for the table below, during the time period beginning on the Closing Date and ending on December 31, 2003, Net Unqualified Subsidiary Investments of up to $25,000,000 may be made, and, during the time period beginning on the Closing Date and ending on the Final Maturity Date, Unqualified Subsidiary Investments of up to $200,000,000 may be made), and (II) the Investments listed in Schedule 8.10A shall not be included in the amounts in the second column of the table set forth below: Closing Date through Dec. 31, 2003 $ 25,000,000 Closing Date through Dec. 31, 2004 $ 75,000,000 Closing date through Dec. 31, 2005 $ 150,000,000 Closing Date through the Final Maturity Date $ 200,000,000
(f) Investments by Unqualified Subsidiaries of Hanover in other Unqualified Subsidiaries of Hanover (whether existing, newly formed or acquired) or in Qualified Subsidiaries (whether existing, newly formed or acquired) of Hanover provided that (i) at the time of each such Investment, no Default or Event of Default shall have occurred and be continuing or result from such Investment, (ii) all transactions related to such Investment shall be consummated in accordance with applicable law, (iii) any such acquired or newly formed Subsidiary shall take all actions required to be taken, if any, with respect to such acquired or newly formed Subsidiary under the Loan Documents, and (iv) Hanover shall be in compliance, on a pro forma basis after giving effect to such Investment, with the covenants contained in Section 8.1 computed as at the last day of the fiscal quarter most recently ended prior to the delivery of the certificate required pursuant to this clause (iv), and Hanover shall have delivered to the Administrative Agent an officer’s certificate to such effect concurrently with the delivery of each certificate of a Responsible Officer pursuant to Section 7.2(b) hereof, together with all relevant financial information with respect to such Investment;
(g) Investments constituting Permitted Business Acquisitions so long as, (a) after giving effect to the consummation of the transactions contemplated by each Permitted Business Acquisition, the Borrower in Loans to be made and the Letters of Credit to be issued hereunder, the sum of (i) the cash and Cash Equivalents (to the extent such cash and Cash Equivalents are free of any Liens other than customary bankers’ liens, the Liens created pursuant to the Security Documents and other Liens that are expressly permitted to exist pursuant to the provisions of the Security Documents) then held by Hanover and its Restricted Qualified Subsidiaries and (ii) the Available Commitments of all the Lenders hereunder at such time equals at least $60,000,000 and (b) the aggregate amount of Investments constituting Permitted Business Acquisitions for any fiscal year shall not exceed $25,000,000 in the aggregate;
(h) Investments or acquisitions by any Restricted Subsidiary Hanover or its Subsidiaries in (i) up to 50% of the shares of capital stock, partnership interests, joint venture interests, limited liability company interests or other similar equity interests in, a Person (other than any Special Purpose a Subsidiary), or (ii) in the Borrower loans or by any Restricted Subsidiary advances to a Person (other than a Subsidiary), provided that (a) after giving effect to the consummation of the transactions contemplated by each such Investment or acquisition, the Loans to be made and the Letters of Credit to be issued hereunder, the sum of (x) the cash and Cash Equivalents (to the extent such cash and Cash Equivalents are free of any Special Purpose SubsidiaryLiens other than customary bankers’ liens, the Liens created pursuant to the Security Documents and other Liens that are expressly permitted to exist pursuant to the provisions of the Security Documents) then held by Hanover and its Qualified Subsidiaries and (y) the Available Commitments of all the Lenders hereunder at such time equals at least $60,000,000 and (b) the aggregate amount of all such loans, advances, investments or acquisitions does not exceed $25,000,000 in any other Restricted Subsidiaryfiscal year;
(i) Loans to employees, officers and directors of Hanover and its Subsidiaries to acquire shares of capital stock of Hanover not to exceed $8,000,000;
(j) the purchase by the TIDES Trust of the TIDES Debentures, as contemplated under the TIDES Declaration of Trust;
(i) Investments in POC’s Joint Ventures existing on the date of consummation of the POC Acquisition and (ii) Investments in POC’s Joint Ventures pursuant to commitments existing at the time of the POC Acquisition in an aggregate amount not to exceed $10,000,000;
(l) Investments in Unqualified Subsidiaries listed in Schedule 8.10A;
(m) Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed $1,000,000 at any one time; and
(hn) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6Investments undertaken pursuant to the Permitted International Reorganization.
Appears in 2 contracts
Samples: Credit Agreement (Hanover Compressor Co /), Credit Agreement (Hanover Compressor Co /)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting all or a material part of a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any PersonPerson (collectively, “Investments”), except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) any Investment Guarantee Obligations permitted by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma ComplianceSection 7.2;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees or directors of the Parent Borrower or its Subsidiaries in the ordinary course of business (including for travel, entertainment and relocation expenses) in an aggregate amount for the Parent Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 5,000,000 at any one time outstanding; provided, however that this provision shall not limit key man insurance;
(e) the investment by the Parent Borrower or its Subsidiaries of accounts receivable or related rights and assets pursuant to a Receivables Transfer Program into a Subsidiary;
(f) Investments made by the Parent Borrower or any of its Subsidiaries with the proceeds of any Reinvestment Deferred Amount;
(g) Investments by the Parent Borrower or any of its Subsidiaries in the Parent Borrower or any Subsidiary Guarantor in the ordinary course of business;
(h) Investments (including debt obligations and Capital Stock) by the Parent Borrower or its Restricted Subsidiaries received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;
(i) so long as no Default or Event of Default shall have occurred and be continuing, the Parent Borrower or any Subsidiary may make advances, loans or extensions of credit to any Foreign Subsidiary or Foreign Subsidiary Holdco; provided that the Indebtedness of such Foreign Subsidiary or Foreign Subsidiary Holdco is permitted under Section 7.2(k);
(j) in addition to Investments otherwise permitted by this Section 7.8, so long as no Default or Event of Default shall have occurred and be continuing, Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Parent Borrower or any of its Subsidiaries; provided that (x) to the extent such Investments consist of equity investments (by any Restricted Subsidiary (other than any Special Purpose Subsidiaryway of capital contribution or otherwise) in any Subsidiary, the requirements of Section 6.9 are satisfied and (y) the Consolidated Senior Secured Leverage Ratio of the Parent Borrower and its Subsidiaries, computed on a pro forma basis (giving effect to such Investments and any Indebtedness incurred in connection therewith) as at the last day of the most recently ended fiscal quarter of the Parent Borrower and its Subsidiaries for which financial statements are available, is no greater than the Consolidated Senior Secured Leverage Ratio that is 0.25x lower than the Consolidated Senior Secured Leverage Ratio in effect for such fiscal quarter under Section 7.1(a);
(k) other Restricted SubsidiaryInvestments constituting Permitted Business Acquisitions;
(l) in addition to Investments otherwise permitted by this Section 7.8, so long as no Default or Event of Default shall have occurred and be continuing, Investments by the Parent Borrower or any of its Subsidiaries in an aggregate amount (valued at cost) not to exceed the greater of (x) $75,000,000 and (y) 3.5% of Consolidated Total Assets (measured on the date of the making of such Investment) at any time outstanding; and
(hm) promissory notes to the extent constituting Investments, any (i) interest rate Swap Agreements in the ordinary course of business up to an aggregate notional principal amount not to exceed at any time an amount equal to the Commitments of all the Lenders in the aggregate at such time, (ii) Swap Agreements in the ordinary course of business entered into in order to manage existing or anticipated exchange rate or commodity price risks and other deferred payment obligations that constitute proceeds not for speculative purposes or (iii) Permitted Bond Hedge Transaction or any Permitted Warrant Transaction. For purposes of Asset Sales that are permitted by subsection 6.6this Agreement, the amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment, but giving effect to any repayments of principal in the case of Investments in the form of loans and any return of capital or return on Investment in the case of equity Investments (whether as a distribution, dividend, redemption or sale, but not in excess of the amount of the initial Investment).
Appears in 2 contracts
Samples: Credit Agreement (CONMED Corp), Credit Agreement (CONMED Corp)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit (including the incurrence or assumption of any Guarantee Obligation) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment investment, in cash or by transfer of assets or property, in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments"each an “Investment”), any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in cash and Cash Equivalents;
(c) any Investment by Investments existing on the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) Effective Date and described in Persons engaged in Schedule 8.8(c), setting forth the telecommunications business or businesses related thereto, provided that (i) respective amounts of such Person, if it shall be Investments as of a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliancerecent date;
(d) any Investment by the Borrower or any Restricted Subsidiary (Investments in notes receivable and other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower instruments and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired securities obtained in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment any Permitted Receivables Transaction and (B) the Borrower designates such Person, Bond Prepayments permitted by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliancesubsection 8.13(a);
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to officers, directors or employees of Holding or any of its Subsidiaries (i) in the Borrower ordinary course of business for travel and its Restricted Subsidiaries entertainment expenses, (ii) existing on the Effective Date and described in Schedule 8.8(c), (iii) made after the Effective Date for relocation expenses in the ordinary course of business, (iv) made for other purposes in an aggregate principal amount outstanding not (as to exceed Holding and all of its Subsidiaries) of up to $10,000,000 outstanding at any one time outstandingand (v) relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity;
(gi) Investments by the Borrower in its Restricted Wholly Owned Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Receivables Subsidiary) and Subsidiary Guarantors and by such Wholly Owned Subsidiaries and Subsidiary Guarantors in the Borrower, Wholly Owned Subsidiaries of the Borrower or by any Restricted Subsidiary (other than any Special Purpose Receivables Subsidiary) and Subsidiary Guarantors (subject, in the case of any Investments by the Borrower or any Guarantor in a Subsidiary that is not a Guarantor, to the limitations set forth in subsection 8.6(f)) and/or (ii) Investments in Intermediate Holding in amounts and for purposes for which dividends are permitted under subsection 8.7;
(g) acquisitions expressly permitted by subsection 8.9 and, to the extent otherwise restricted by this subsection 8.8, the Partnership Transaction;
(h) Investments of the Borrower and its Subsidiaries under Interest Rate Protection Agreements or under Permitted Hedging Arrangements;
(i) Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business or otherwise described in subsection 8.3(c), (d) or (f);
(j) Investments representing non-cash consideration received by the Borrower or any of its Subsidiaries in connection with any Asset Sale, provided that in the case of any Asset Sale permitted under subsection 8.6(i), such non-cash consideration constitutes not more than 25% of the aggregate consideration received in connection with such Asset Sale and any such non-cash consideration received by the Borrower or any of its Domestic Subsidiaries is pledged to the Administrative Agent for the benefit of the Secured Parties pursuant to the Security Documents (except to the extent occurring during any Collateral Release Period);
(k) any Investment by the Borrower and its Subsidiaries in a Receivables Subsidiary which, in the judgment of the Borrower, is prudent and reasonably necessary in connection with, or otherwise required by the terms of, any Permitted Securitization Transaction;
(l) Investments by the Borrower or any of its Subsidiaries in a Person in connection with a joint venture or similar arrangement (including, without limitation, Foreign Subsidiaries) in an aggregate amount not to exceed at any time (together with any Guarantee Obligations permitted by subsection 8.2(v)) an amount equal to $300,000,000; provided that the Borrower or such Subsidiary complies with the provisions of subsection 7.9(b) and (c) hereof, if applicable, with respect to such ownership interest;
(m) Investments in industrial development or revenue bonds or similar obligations secured by assets leased to and operated by the Borrower or any of its Subsidiaries that were issued in connection with the financing of such assets, so long as the Borrower or any such Subsidiary may obtain title to such assets at any time by optionally canceling such bonds or obligations, paying a nominal fee and terminating such financing transaction;
(n) Investments representing evidences of Indebtedness, securities or other Restricted property received from another Person by the Borrower or any of its Subsidiaries in connection with any bankruptcy proceeding or other reorganization of such other Person or as a result of foreclosure, perfection or enforcement of any Lien or exchange for evidences of Indebtedness, securities or other property of such other Person held by the Borrower or any of its Subsidiaries; provided that any such securities or other property received by the Borrower or any of its Domestic Subsidiaries (other than a Receivables Subsidiary or a Subsidiary of a Foreign Subsidiary) is pledged to the Administrative Agent for the benefit of the Secured Parties pursuant to the Security Documents; and
(ho) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are Investments not otherwise permitted by the preceding clauses of this subsection 6.68.8 not to exceed in the aggregate at any time the greater of (i) $150,000,000 and (ii) 10% of the consolidated total assets of the Borrower and its Subsidiaries shown on the consolidated balance sheet of the Borrower and its Subsidiaries as of the end of the most recent fiscal quarter for which an Adjustment Date has occurred, determined on a consolidated basis in accordance with GAAP.
Appears in 2 contracts
Samples: Credit Agreement (Graphic Packaging International, LLC), Credit Agreement (International Paper Co /New/)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advancesincluding, loanswithout limitation, extensions any acquisition of creditall or any substantial portion of the assets, capital contributionsand any acquisition of a business or a product line, purchases and investments being herein called "Investments"of other companies, other than the acquisition of inventory in the ordinary course of business), any Person, except:
(a) extensions loans or advances, to the extent, in each case, the Indebtedness created thereby is permitted by subsection 7.1(b);
(b) Bermuda Holdings or any Subsidiary of Bermuda Holdings may make investments in, or create, any other Subsidiary of Bermuda Holdings (by way of capital contribution or otherwise) provided that (i) the requirements of subsection 6.9 are satisfied and (ii) the aggregate amount of investments made by Credit Parties in Tier 2 Foreign Entities (except for investments otherwise permitted under this subsection 7.6) shall not exceed $20,000,000 plus the sum of any amounts dividended or distributed by any Tier 2 Foreign Entity to any Credit Party (not retransferred to a Tier 2 Foreign Entity) less the sum of (A) the aggregate outstanding amount of any Indebtedness of Tier 2 Foreign Entities owed to Credit Parties pursuant to subsection 7.1(d) and (B) the aggregate amount of any obligations of Tier 2 Foreign Entities guaranteed by Credit Parties pursuant to subsection 7.3(c) and, provided further that Bermuda Holdings and its Subsidiaries may make investments in Bermuda Holdings and its Subsidiaries financed with contributions of equity after the Closing Date directly or indirectly from Bermuda Holdings or the other Permitted Holders and such investments shall be permitted hereunder, to the extent such equity proceeds are not used to finance acquisitions pursuant to this subsection 7.6;
(c) Bermuda Holdings and its Subsidiaries may (i) invest in, acquire and hold Cash Equivalents and Investment Grade Securities and (ii) make loans in an aggregate amount at any time outstanding not to exceed $2,000,000 in connection with a sale of assets permitted by subsection 7.5;
(d) Bermuda Holdings and its Subsidiaries may make payroll advances in the ordinary course of business (including advances against commissions) not to exceed $500,000;
(e) Bermuda Holdings and its Subsidiaries may acquire and hold receivables owing to them, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade credit terms (provided that nothing in this clause (e) shall prevent Bermuda Holdings or any of its Subsidiaries from offering such concessionary trade terms, or from receiving such investments, in connection with the bankruptcy or reorganization of their respective suppliers or customers or the settlement of disputes with such customers or suppliers arising in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged , as management deems reasonable in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliancecircumstances);
(f) Bermuda Holdings and its Subsidiaries may make travel and entertainment advances and relocation and other loans to officers and employees of Bermuda Holdings or any such Subsidiary; provided that the aggregate principal amount of all such loans and advances outstanding at any one time, together with the guarantees of such loans and advances made pursuant to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding subsection 7.3(e), shall not to exceed $10,000,000 2,000,000 at any one time outstanding;
(g) Investments by Bermuda Holdings and its Subsidiaries may (i) make investments in, or loans or investments to, joint ventures or other Persons engaged primarily in one or more businesses in which Bermuda Holdings and its Subsidiaries are engaged or generally related thereto or (ii) make expenditures in connection with the development and integration of technology of Bermuda Holdings and its Subsidiaries in connection with an agreement or other arrangement with a third party (any such expenditures shall be deemed not to be operating expenses for all purposes under this Agreement), in an aggregate amount in respect of clauses (i) and (ii) not to exceed $25,000,000), (plus the sum of (x) any amounts dividended or distributed to the Borrower or any Subsidiary Guarantor (whichever party is making such investment, loan or expenditure) by such joint venture or other Person, (y) the net cash proceeds of any issuance of Capital Stock by Bermuda Holdings after the Closing Date (except to the extent such net cash proceeds have been or are being applied for another purpose expressly provided for, and described in, subsections 7.6(i), 7.7 (to the extent funded with net cash proceeds described in clause (ii) of the proviso thereto), 7.10(c) (to the extent funded with net cash proceeds described in clause (b) of the parenthetical at the end of such subsection), or 7.10(e)), and (z) any amounts from sales or dispositions permitted by subsection 7.5(k)); provided that at the time of and after giving effect thereto no Default or Event of Default shall have occurred and be continuing or would result therefrom;
(h) Bermuda Holdings and its Restricted Subsidiaries may make investments in the form of stock, obligations or securities received by such Person in satisfaction of judgments, foreclosure of liens or settlement of debts in favor of Bermuda Holdings or such Subsidiary (whether pursuant to a plan of reorganization or similar arrangement);
(i) Bermuda Holdings and Investments by any Restricted Subsidiary its Subsidiaries may make investments and acquisitions in exchange for, or with the net cash proceeds from, the substantially concurrent sale of Capital Stock of Bermuda Holdings (other than any Special Purpose SubsidiaryCapital Stock issued or sold to a Subsidiary of Bermuda Holdings) or a substantially concurrent cash capital contribution received by Bermuda Holdings from its shareholders (except to the extent such net cash proceeds have been or are being applied for another purpose expressly provided for, and described in, subsections 7.6(g) (to the extent funded with net cash proceeds described in clause (y) of the Borrower parenthetical therein), 7.7 (to the extent funded with net cash proceeds described in clause (ii) of the proviso thereto), 7.10(c) (to the extent funded with net cash proceeds described in clause (b) of the parenthetical at the end of such subsection), or by any Restricted Subsidiary 7.10(e));
(j) Capital Expenditures as permitted under subsection 7.7, payments of dividends or distributions, and purchases, redemptions, retirements or other than any Special Purpose Subsidiary) in any acquisitions as permitted under subsection 7.10, and payments or prepayments on or redemption, retirement, defeasance, repurchases or acquisitions for value of other Restricted SubsidiaryIndebtedness as permitted under subsection 7.16; and
(hk) promissory notes and any securities or assets received or other deferred payment obligations that constitute proceeds investments made as a result of Asset Sales that are the receipt of non-cash consideration from any disposition of assets permitted by subsection 6.67.5. For purposes of this subsection 7.6, the payment, or intercompany loans or advances for such purpose, by Bermuda Holdings or any Subsidiary of expenses and operating costs of Bermuda Holdings or any Subsidiary (x) incurred in the ordinary course of business (provided that, any such payment by Bermuda Holdings or any Subsidiary of expenses and operating costs of Foreign Subsidiaries of the Borrower pursuant to this clause shall be promptly repaid by such Foreign Subsidiaries as soon as such Foreign Subsidiaries have funds available to make such repayment) or (y) incurred in association with the initial establishment, start up and capitalization of Subsidiaries of Bermuda Holdings shall not be considered to be a loan, advance, dividend or other investment, and shall be permitted under this Agreement and such payments shall not reduce any permitted amounts to be so made as specified herein.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Stratus Technologies Bermuda Holdings Ltd.), Revolving Credit Agreement (Stratus Technologies Bermuda Holdings Ltd.)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in Cash Equivalents;
(c) any Investment Guarantee Obligations permitted by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma ComplianceSection 7.2;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower or its Subsidiaries in the ordinary course of business (including, without limitation, for travel, entertainment and relocation
(e) the Acquisitions and the Bumble Bee Acquisition;
(f) investments by the Borrower or any of its Subsidiaries in the Borrower or any Wholly Owned Subsidiary Guarantor;
(g) loans, advances or investments in existence on the Closing Date and listed on Schedule 7.8(g), and extensions, renewals, modifications or restatements or replacements thereof, provided that no such extension, renewal, modification or restatement shall (i) increase the amount of the original loan, advance or investment, or (ii) adversely affect the interests of the Lenders with respect to such original loan, advance or investment or the interests of the Lenders under this Agreement or any other Loan Document in any respect;
(h) investments made by the Borrower or any of its Subsidiaries with the proceeds of any Reinvestment Deferred Amount or any Unapplied Excess Cash Flow;
(i) investments made by the Borrower or any of its Subsidiaries pursuant to an Asset Swap or with the proceeds of any Contributed Equity, so long as, after giving pro forma effect thereto (as certified to the Administrative Agent by a Responsible Officer prior to consummation of such investment), no Default or Event of Default shall have occurred and be continuing (including, without limitation, pursuant to Section 7.1);
(j) Investments constituting Capital Expenditures permitted by Section 7.7;
(k) promissory notes and other similar non-cash consideration received by the Borrower and its Restricted Subsidiaries in connection with the Dispositions permitted by Section 7.5;
(l) Investments consisting of Interest Rate Protection Agreements and commodity and currency hedging arrangements entered into in the ordinary course of business of the Borrower or any of its Subsidiaries and not for purposes of speculation;
(m) Investments (including debt obligations and Capital Stock) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;
(n) Investments on customary terms required to create and capitalize a Receivables SPV;
(o) Permitted Investments, so long as, after giving pro forma effect thereto (as certified to the Administrative Agent by a Responsible Officer prior to consummation of such investment), no Default or Event of Default shall have occurred and be continuing (including, without limitation, pursuant to Section 7.1);
(q) in addition to investments otherwise expressly permitted by this Section 7.8, investments by the Borrower or any of its Subsidiaries in an aggregate principal amount outstanding (valued at cost) not to exceed $10,000,000 40,000,000 at any one time outstanding;
, so long as, after giving pro forma effect thereto (g) Investments as certified to the Administrative Agent by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) a Responsible Officer prior to consummation of such investment, in the Borrower case of any single investment in excess of $15,000,000), no Default or by any Restricted Subsidiary Event of Default shall have occurred and be continuing (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; and
(h) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6including, without limitation, pursuant to Section 7.1).
Appears in 2 contracts
Samples: Credit Agreement (International Home Foods Inc), Credit Agreement (International Home Foods Inc)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in Cash Equivalentscash equivalents, including any such investment that may be readily sold or otherwise liquidated in any Fund for which any Subsidiary or other Management Company provides management, advisory or administrative services and which principally invests in cash equivalents;
(c) any Investment by the Borrower investment in or loan or advance to a Management Company or a Subsidiary or in any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related theretoPerson which, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investmentinvestment, the Borrower is in Pro Forma Compliancewill become a Subsidiary or a Management Company, if, after giving effect to such investment, no Default or Event of Default shall have occurred and be continuing;
(d) any Investment by loans to officers of the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) its Subsidiaries listed on Schedule 8.10 in Persons aggregate principal amounts outstanding not engaged in to exceed the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly respective amounts set forth for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Complianceofficers on said schedule;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower or its Subsidiaries for travel, entertainment and its Restricted Subsidiaries relocation expenses in the ordinary course of business in an aggregate principal amount outstanding for the Borrower and its Subsidiaries not to exceed $10,000,000 150,000 at any one time outstanding;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary outstanding (other than any Special Purpose Subsidiaryas permitted in subsection 8.10(f)) and (ii) in the Borrower or by any Restricted case of a Subsidiary of the Borrower, loans and advances to employees for travel, entertainment and relocation expenses in the ordinary course of business to the extent that such loans and advances are made out of that portion of its revenues designated as Operating Cash Flow (other than any Special Purpose Subsidiaryand not Free Cash Flow) in any other Restricted Subsidiaryunder the relevant Revenue Sharing Agreement; and
(hf) promissory notes to the extent made out of the portion of the revenues of a Subsidiary of the Borrower which is designated as Operating Cash Flow (and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6not Free Cash Flow) under the relevant Revenue Sharing Agreements.
Appears in 2 contracts
Samples: Credit Agreement (Affiliated Managers Group Inc), Credit Agreement (Affiliated Managers Group Inc)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or incur any Guarantee Obligation on behalf or for the benefit of, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment (including by the issuance of letters of credit) in (such advancescollectively, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments"), any Person, Person except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) any Investment by loans and advances to officers and employees of the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged for travel, entertainment and relocation expenses in the telecommunications ordinary course of business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by for the Borrower and its Restricted Subsidiaries does not to exceed (x) $1,000,000 at any one time prior to outstanding;
(d) Investments constituting Permitted Business Investments made or entered into in the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds ordinary course of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment Oil and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma ComplianceGas Business;
(e) any Investment arising from Investments constituting Permitted Business Acquisitions made or entered into in the acquisition by ordinary course of the Borrower Oil and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma ComplianceGas Business;
(f) loans Investments by the Borrower in any Wholly-Owned Restricted Subsidiary and advances to employees Investments by any Wholly-Owned Restricted Subsidiary in the Borrower or in other Wholly-Owned Restricted Subsidiaries, provided that the net book value of Investments made after the Closing Date in any Restricted Subsidiaries which are Foreign Subsidiaries shall not exceed 25% of the net book value of the assets of the Borrower and its Restricted Subsidiaries in an the aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstandingoutstanding after taking into account any return after the Closing Date from dividends, distributions and repayments in respect of such Investment;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by or any Restricted Subsidiary in Unrestricted Subsidiaries; provided that the aggregate amount of such Investments (other than net of any Special Purpose Subsidiarycash received as dividends or distributions on such Investments or from the sale of such Investments) in does not exceed, at any one time outstanding, $10,000,000, unless (after deducting that excess, pursuant to subsection 8.7(b)(iv), from the amount of Restricted Payments permitted by subsection 8.7(b)) the Borrower or by would be able to make, at such time, an additional Restricted Payment pursuant to subsection 8.7(b); provided further that the cumulative outstanding investment in any Restricted Subsidiary (other than any Special Purpose Subsidiary) on the date that such Restricted Subsidiary is converted to an Unrestricted Subsidiary in any other Restricted Subsidiaryconformity with subsection 8.17 shall be deemed an investment made on such conversion date in an Unrestricted Subsidiary for purposes of determining compliance with this subsection 8.8(g); and
(h) promissory notes Investments by the Borrower or any Restricted Subsidiary in securities which trade on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market (including Investments existing on the Closing Date and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6.listed on Schedule 8.8 hereof,
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make Purchase, --------------------------------------------- hold or acquire beneficially any advanceCapital Stock, loanother securities or evidences of indebtedness of, extension of credit make or capital contribution permit to exist any loans or advances to, or purchase make or permit to exist any stockinvestment or acquire any interest whatsoever in, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments"), any Person, except:
(a) extensions of trade credit to customers in the ordinary course of business;
(b) Investments in Cash EquivalentsPermitted Investments;
(c) capital contributions, loans and advances by any Investment by Person constituting the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that to any Person constituting the Borrower shall have made or a Pro Rata Payment Offer in an amount equal to such Investment and (B) domestic Subsidiary of the Borrower designates such Person, and loans and advances by notice to the Administrative Agent, as an Unrestricted any foreign Subsidiary and (ii) immediately prior and after giving effect to such Investment, of the Borrower is in Pro Forma Complianceto any other foreign Subsidiary of the Borrower;
(d) loans and advances in the form of cash by any Investment by Person constituting the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds foreign Subsidiaries of the Borrower in such an aggregate amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer not to exceed $500,000 in an outstanding principal amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Complianceat any time;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees or directors of any Person constituting the Borrower and its Restricted Subsidiaries not to exceed $100,000 in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstandingtime;
(f) as permitted by Section 6.17; and
(g) Investments by so long as no Default or Event of Default has occurred and is continuing, (i) GSI (or any of its wholly-owned Subsidiaries) may purchase Capital Stock of any Person not a Subsidiary for consideration consisting solely of the Borrower Capital Stock of GSI (and cash in accordance with clauses (ii) or (iii) below, as applicable); provided the acquired Person has not incurred net losses in its Restricted Subsidiaries two fiscal years immediately preceding the date of acquisition and Investments by is not, at the time of acquisition, operating at a net loss; (ii) GSI or any Restricted wholly-owned Subsidiary (other than of GSI may purchase Capital Stock of any Special Purpose Subsidiary) Person not a Subsidiary for a cash purchase price not exceeding $3,000,000 in the Borrower aggregate for all such purchases occuring prior to April 30, 2000; and (iii) after Xxxxx 00, 0000, XXX or any wholly-owned Subsidiary of GSI may purchase Capital Stock of any Person not a Subsidiary so long as, after consummating such acquisition, the Available Commitment is not less than $5,000,000; provided in each case referred to in clause (i), (ii) and (iii), GSI has given the Agent 30 days prior written notice of the proposed purchase; giving effect to such acquisition shall not give rise to an Event of Default, simultaneously with such acquisition, any Person becoming a domestic Subsidiary guarantees payment of the Obligations pursuant to a written agreement in favor of, and otherwise in form and substance satisfactory to, the Required Lenders, and in the case of any acquisition referred to in clause (iii), GSI shall have provided the Agent with projections of the acquired Person's financial performance after giving effect to such acquisition in form and covering such periods as is reasonably requested by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; and
(h) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6Agent.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, sell or contribute personal property or other assets to, or make any other investment in (such advances, loans, extensions all of credit, capital contributions, purchases and investments the foregoing being herein called "collectively referred to as “Investments"”), any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of such Person or its Subsidiaries for travel, entertainment and relocation expenses in the Borrower and its Restricted Subsidiaries ordinary course of business in an aggregate principal amount outstanding for Hanover and its Subsidiaries not to exceed $10,000,000 5,000,000 at any one time outstanding;
(gd) Investments by the Borrower Hanover in its Restricted Subsidiaries which are or become Credit Parties and Investments investments by such Subsidiaries which are or become Credit Parties in other Subsidiaries of Hanover which are or become Credit Parties;
(e) Net Unqualified Subsidiary Investments, provided that (i) at the time of each such Net Unqualified Subsidiary Investment, no Default or Event of Default shall have occurred and be continuing or result from such Net Unqualified Subsidiary Investment, (ii) all transactions related to such Net Unqualified Subsidiary Investment shall be consummated in accordance with applicable law, (iii) with respect to any Restricted acquired or newly formed Unqualified Subsidiary relating to such Net Unqualified Subsidiary Investment, such acquired or newly formed Unqualified Subsidiary shall take all actions required to be taken, if any, with respect to such acquired or newly formed Unqualified Subsidiary under the Loan Documents, (iv) Hanover and HCLP shall be in compliance, on a pro forma basis after giving effect to such Net Unqualified Subsidiary Investment, with the Section 8.1 computed as at the last day of the fiscal quarter most recently ended prior to the date of such Investment, (v) after giving effect to the consummation of the transactions contemplated by such Net Unqualified Subsidiary Investment, the Loans to be made and the Letters of Credit to be issued hereunder, the sum of (A) the cash and Cash Equivalents (to the extent such cash and Cash Equivalents are free of any Liens other than any Special Purpose Subsidiarycustomary banker’s liens and the Liens created by the Security Documents) then held by Hanover and its Qualified Subsidiaries in an aggregate amount not to exceed $10,000,000 and (B) the lesser of (x) Available Revolving Commitments of all the Lenders hereunder and (y) the aggregate amount of Indebtedness which the relevant Borrower would be able to incur under Section 8.1 on a pro forma basis, equals at least $60,000,000, and (vi) Hanover shall have delivered to the Administrative Agent a certificate or by any Restricted Subsidiary a Responsible Officer certifying as the to the matters set forth in clauses (other than any Special Purpose Subsidiaryi) in any other Restricted Subsidiary; and
through (h) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6.v);
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of of, or any assets constituting a business unit of, or make or maintain any other investment in (such advanceseach an Investment and, loanscollectively, extensions of credit, capital contributions, purchases and investments being herein called "Investments")) in, any Person, exceptexcept (subject to the final sentence of this Section 9.7) the following:
(a) extensions (i) loans or advances in respect of trade credit intercompany accounts attributable to the operation of the Company’s cash management system, (ii) loans or advances by the Company or any Restricted Subsidiary to the Company or any Restricted Subsidiary for working capital needs so long as such loans or advances constitute Indebtedness of the primary obligor that is not subordinate to any other Indebtedness of such obligor and, if evidenced by a promissory note, instrument or other writing and owed to the Company or any Subsidiary Guarantor, shall be pledged to the Collateral Agent, and provided that the aggregate outstanding principal amount of all such loans, when aggregated with the aggregate amount of all Investments made by the Company and the Restricted Subsidiaries in its Subsidiaries pursuant to clause (b)(i) below, shall not exceed five percent (5%) of the Consolidated Total Assets, (iii) loans or advances to the Company or any Subsidiary Guarantor which are subordinated to the Finance Obligations on the terms and conditions set forth in Exhibit G and (iv) loans or advances by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(b) (i) Investments by the Company or a Subsidiary Guarantor in Domestic Subsidiaries of the Company that are not Credit Parties in an aggregate amount, when taken together with the aggregate amount of all outstanding loans and advances made pursuant to clause (a)(ii) above, not exceeding five percent (5%) of the Consolidated Total Assets; (ii) Investments by the Company or a Domestic Subsidiary in Foreign Subsidiaries of the Company in an aggregate amount not exceeding $200,000,000 for all such Investments made or committed to be made from and after the Effective Date plus an amount equal to any returns of capital or sales proceeds actually received in cash in respect of any such Investments (which amount shall not exceed the amount of such investment valued at cost at the time such investment was made) and (iii) Investments by any Subsidiary that is not a Credit Party in any other Subsidiary that is not a Credit Party;
(c) Investments by the Company or any of its Restricted Subsidiaries in Restricted Subsidiaries of the Company which are Credit Parties;
(d) any Domestic Subsidiary of the Company which is not a Credit Party may make Investments in the Company or any Domestic Subsidiary (by way of capital contribution or otherwise), and any Foreign Subsidiary of the Company may make Investments in the Company or any other Foreign Subsidiary (by way of capital contribution or otherwise);
(e) the Company or any Restricted Subsidiary may invest in, acquire and hold cash and Cash Equivalents;
(f) the Company or any of its Restricted Subsidiaries may make travel and entertainment advances and relocation loans in the ordinary course of business to officers, employees and agents of the Company or any such Restricted Subsidiary;
(g) the Company or any of its Restricted Subsidiaries may make payroll advances in the ordinary course of business;
(bh) Investments the Company or any of its Restricted Subsidiaries may acquire and hold receivables owing to it, if created or acquired in Cash Equivalents;
the ordinary course of business and payable or dischargeable in accordance with customary trade terms (cprovided that nothing in this clause (h) any Investment by shall prevent the Borrower Company or any Restricted Subsidiary (other than any Special Purpose Subsidiary) from offering such concessionary trade terms, or from receiving such Investments in Persons engaged connection with the bankruptcy or reorganization of their respective suppliers or customers or the settlement of disputes with such customers or suppliers arising in the telecommunications business ordinary course of business, as management deems reasonable in the circumstances);
(i) the Company and its Restricted Subsidiaries may make Investments in connection with asset sales permitted by Section 9.6 or businesses related theretoto which the Required Lenders consent;
(j) Investments, loans and advances of the Company or any Restricted Subsidiary existing on the Effective Date and described on Schedule 9.7 hereto;
(k) so long as no Default or Event of Default has occurred and is continuing or would exist after giving effect to such transaction, the Company and its Restricted Subsidiaries may make Permitted Acquisitions, Permitted Foreign Acquisitions and Investments in Permitted Joint Ventures, provided that (i) after giving effect thereto the Company shall be in compliance with the covenants set forth in Section 9.1 (calculated on a pro forma basis as of the last day of the fiscal quarter ending immediately preceding the effective date of such PersonPermitted Acquisition, Permitted Foreign Acquisition or other Investment for which the relevant financial information has been delivered to the Lenders pursuant to Section 8.1 or 8.2, as applicable, giving effect to such Permitted Acquisition, Permitted Foreign Acquisition or Investment as if it shall be had been made on the first day of the Measurement Period ending on the last day of such fiscal quarter); (ii) the Total Leverage Ratio of the Company and its Restricted Subsidiaries is less than 5.00 : 1.00 (calculated on a Subsidiarypro forma basis as of the last day of the fiscal quarter ending immediately preceding the effective date of such Permitted Acquisition or other Investment for which the relevant financial information has been delivered to the Lenders pursuant to Section 8.1 or 8.2, as applicable, giving effect to such Permitted Acquisition or Investment as if it had been made on the first day of the Measurement Period ending on the last day of such fiscal quarter); (iii) if any Person shall become a Restricted Domestic Subsidiary of the Company by virtue of a Permitted Acquisition, then, unless (A) all or substantially all of the assets of such Person or assets shall be acquired with (I) proceeds of capital contributed are transferred to the Borrower expressly for Company (by merger of such purpose and/or (IIPerson with and into the Company or otherwise) funds within 90 days after the date such Person first become a Domestic Subsidiary of the Borrower Company, the Company shall cause such Person to become a Credit Party and shall cause each such Person to comply with the requirements set forth in such amount thatSection 8.10, (iv) immediately after giving effect thereto, the Special Payment Condition Consolidated Liquidity shall not be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment less than $100,000,000 and (Bv) the Borrower designates such Personno Permitted Foreign Acquisition or Permitted Joint Venture may be made of, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is with or in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner consideration of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person which before or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Complianceare (or are required to be) Collateral other than as required under Section 8.10;
(fl) loans Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and advances to employees disputes with, customers and suppliers, in each case in the ordinary course of business;
(m) additional Investments of the Borrower type contemplated by paragraphs (a) and (b) of this Section 9.7 if after giving effect thereto: (i) no Default or Event of Default has occurred or would occur after giving effect thereto; (ii) the Company is in compliance with the Total Leverage Ratio and the Interest Coverage Ratio at the respective levels applicable thereto at such time in accordance with Section 9.1 and the Total Leverage Ratio of the Company and its Restricted Subsidiaries is less than 2.75 to 1.00, in an aggregate principal amount outstanding not each case calculated on a pro forma basis as of the last day of the fiscal quarter ending immediately preceding the date of each such Investment for which the relevant financial information has been delivered to exceed $10,000,000 the Lenders pursuant to Section 8.1 or 8.2, as applicable, giving effect to such Investment as if it had been made on the first day of the Measurement Period ending on the last day of such fiscal quarter; and (iii) each such Investment is funded solely with any then remaining Available Amount at any one the time outstanding;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiarysuch Investment is made; and
(hn) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are Investments permitted by subsection 6.6under Section 9.6(i).
Appears in 1 contract
Samples: Loan Agreement (B/E Aerospace Inc)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting all or a material part of a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in Cash Equivalents;
(c) any Investment Guarantee Obligations permitted by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma ComplianceSection 7.2;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees or directors of the Parent Borrower or its Subsidiaries in the ordinary course of business (including, without limitation, for travel, entertainment and relocation expenses) in an aggregate amount for the Parent Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 2,000,000 at any one time outstanding, provided, however that this provision shall not limit key man insurance;
(e) the investment by the Parent Borrower of accounts receivable or related rights and assets pursuant to a Receivables Transfer Program into a Subsidiary of the Parent Borrower;
(f) investments made by the Parent Borrower or any of its Subsidiaries with the proceeds of any Reinvestment Deferred Amount;
(g) Investments investments by the Parent Borrower in or any of its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Parent Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) Guarantor in any other Restricted Subsidiary; andthe ordinary course of business;
(h) promissory notes investments (including debt obligations and Capital Stock) by the Parent Borrower and its Subsidiaries received in connection with the bankruptcy or reorganization of suppliers and Back to Table of Contents customers and in settlement of delinquent obligations of, and other deferred payment obligations disputes with, customers and suppliers arising in the ordinary course of business;
(i) so long as no Default or Event of Default shall have occurred and be continuing, the Parent Borrower and any Subsidiary may (i) make equity investments in, or create, any Wholly-Owned Foreign Subsidiary (by way of capital contribution or otherwise), provided that constitute proceeds (x) the requirements of Asset Sales Section 6.9 are satisfied and (y) the aggregate amount of all such investments in such Foreign Subsidiaries (other than investments in Foreign Subsidiaries in accordance with Section 7.8(k)) shall not exceed $60,000,000 since the Closing Date (plus any Available Excess Cash Flow) and (ii) make advances, loans or extensions of credit to any Wholly-Owned Foreign Subsidiary, provided that are the Indebtedness of such Wholly-Owned Foreign Subsidiary is permitted under Section 7.2(j);
(j) in addition to investments otherwise expressly permitted by subsection 6.6this Section 7.8, so long as no Default or Event of Default shall have occurred and be continuing, investments, loans or advances by the Parent Borrower or any of its Subsidiaries in an aggregate amount (valued at cost) not to exceed $30,000,000 since the Closing Date;
(k) other investments constituting Permitted Business Acquisitions for aggregate consideration not to exceed $150,000,000 (plus any Available Excess Cash Flow) in any one calendar year; provided that if any earn-out payment is contemplated in connection with any such Permitted Business Acquisition, then, for the purposes of this Section 7.8(k), such earn-out payment shall constitute consideration as part of a Permitted Business Acquisition in the calendar year in which such payment is made and be subject to the basket limitations above at the time of payment thereof, regardless of the date such Permitted Business Acquisition is consummated.
Appears in 1 contract
Samples: Credit Agreement (Conmed Corp)
Limitation on Investments, Loans and Advances. Make The Borrower will not, and will not permit any of its Subsidiaries to, make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advancesany of the foregoing, loans, extensions of credit, capital contributions, purchases and investments being herein called an "InvestmentsINVESTMENT"), any Person, exceptexcept for:
(a) investments permitted by Section 6.4(a) and (b);
(b) investments in marketable securities, liquid investments and other financial instruments that are acquired for investment purposes and may be readily sold or otherwise liquidated, that have a value which may be readily established and which are investment grade;
(c) investments outstanding on the date hereof and identified in SCHEDULE 6.7;
(d) operating deposit accounts with banks;
(e) investments by the Borrower and its Subsidiaries in the Borrower and its Subsidiaries;
(f) extensions of trade credit in the nature of accounts receivable or notes receivable arising from the sale or lease of goods or services in the ordinary course of business;
(bg) Investments in Cash Equivalents;
(c) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds extensions of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances credit to employees of the Borrower and its Restricted Subsidiaries evidenced by promissory notes in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstanding;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary500,000; and
(h) promissory notes Permitted Acquisitions, so long as:
(i) unless the Majority Lenders shall otherwise consent in writing, the aggregate purchase price of all Permitted Acquisitions shall not exceed $4,000,000;
(ii) such acquisition (if by purchase of assets, merger or consolidation) shall be effected in such manner so that the acquired entity and the related assets thereof, are owned either by the Borrower or a Wholly Owned Subsidiary of the Borrower, and, if effected by merger or consolidation involving the Borrower, the Borrower shall be the continuing or surviving entity;
(iii) such acquisition (if by purchase of stock) shall be effected in such manner so that the acquired entity becomes a Wholly Owned Subsidiary of the Borrower;
(iv) the Agent shall have received, at least 10 Business Days prior to such acquisition, each of the following, in each case in form and substance reasonably acceptable to the Agent, (A) all documents as it shall reasonably request evidencing such acquisition (including the acquisition agreement therefor), (B) pro forma financial statements combining the historical results of the Borrower and the business to be acquired, (C) updated projections of the Borrower reflecting such acquisition, (D) such security documents, mortgages, pledge agreements, UCC-1 Financing Statements and related documents as the Agent shall request to create or confirm a first-priority security interest in favor of the Agent in the assets to be acquired, (E) a pro forma Covenant Compliance Certificate and (F) such other deferred payment obligations that constitute proceeds documents or evidence as the Agent or any Lender shall reasonably request;
(v) concurrently with the consummation of Asset Sales that are permitted such acquisition, all actions (1) required under Section 5.11 and (2) required by subsection 6.6the Agent to perfect a security interest in all personal property assets acquired shall have been taken); and
(vi) at the time of such acquisition and after giving effect thereto, no Default shall have occurred and shall be continuing.
Appears in 1 contract
Samples: Credit Agreement (Vdi Media)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting all or a material part of a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in Cash Equivalents;
(c) any Investment Guarantee Obligations permitted by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma ComplianceSection 7.2;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees or directors of the Borrower or its Subsidiaries in the ordinary course of business (including, without limitation, for travel, entertainment and relocation expenses) in an aggregate amount for the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 1,000,000 at any one time outstanding, provided, however that this provision shall not limit key man insurance;
(e) the Acquisition;
(f) investments made by the Borrower or any of its Subsidiaries with the proceeds of any Reinvestment Deferred Amount;
(g) Investments investments by the Borrower in or any of its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or any Subsidiary Guarantor in the ordinary course of business;
(h) investments (including debt obligations and Capital Stock) by the Borrower and its Subsidiaries received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;
(i) so long as no Default or Event of Default shall have occurred and be continuing, the Borrower and any Restricted Subsidiary may make investments in, or create, any Wholly-Owned Foreign Subsidiary (other than by way of capital contribution or otherwise), provided that (x) the requirements of Section 6.10 are satisfied and (y) the aggregate amount of all investments in such Foreign Subsidiaries shall not exceed (I) $10,000,000 since the Original Closing Date minus (II) the sum of (A) the aggregate principal amount of any Special Purpose SubsidiaryIndebtedness of any Foreign Subsidiary at any such time outstanding in accordance with Section 7.2(l) and (B) the aggregate fair market value of any Dispositions of Property from the Borrower or any Subsidiary Guarantor to any Foreign Subsidiary in accordance with Section 7.5(e);
(j) in addition to investments otherwise expressly permitted by this Section 7.8, so long as no Default or Event of Default shall have occurred and be continuing, investments by the Borrower or any other Restricted Subsidiaryof its Subsidiaries in an aggregate amount (valued at cost) not to exceed $15,000,000 since the Original Closing Date; and
(hk) promissory notes and other deferred payment obligations that constitute proceeds investments constituting Permitted Business Acquisitions for aggregate consideration not to exceed $50,000,000 since the Original Closing Date, unless the Borrower shall have obtained the prior written consent of Asset Sales that are permitted by subsection 6.6the Required Lenders.
Appears in 1 contract
Samples: Credit Agreement (Conmed Corp)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or incur any Guarantee Obligation on behalf or for the benefit of, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment (including by the issuance of letters of credit) in (such advancescollectively, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments"), any Person, Person except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) any Investment by loans and advances to officers and employees of the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged for travel, entertainment and relocation expenses in the telecommunications ordinary course of business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by for the Borrower and its Restricted Subsidiaries does not to exceed (x) $1,000,000 at any one time prior to outstanding;
(d) Investments constituting Permitted Business Investments made or entered into in the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds ordinary course of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment Oil and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma ComplianceGas Business;
(e) any Investment arising from Investments constituting Permitted Business Acquisitions made or entered into in the acquisition by ordinary course of the Borrower Oil and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma ComplianceGas Business;
(f) loans Investments by the Borrower in any Wholly-Owned Restricted Subsidiary and advances to employees Investments by any Wholly-Owned Restricted Subsidiary in the Borrower or in other Wholly- Owned Restricted Subsidiaries, provided that the net book value of Investments made after the Restatement Effective Date in any Restricted Subsidiaries which are Foreign Subsidiaries shall not exceed 25% of the net book value of the assets of the Borrower and its Restricted Subsidiaries in an the aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstandingoutstanding after taking into account any return after the Restatement Effective Date from dividends, distributions and repayments in respect of such Investment;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by or any Restricted Subsidiary in Unrestricted Subsidiaries; provided that the aggregate amount of such Investments (other than net of any Special Purpose Subsidiarycash received as dividends or distributions on such Investments or from the sale of such Investments) in does not exceed, at any one time outstanding, $10,000,000, unless (after deducting that excess, pursuant to subsection 8.7(b)(iv), from the amount of Restricted Payments permitted by subsection 8.7(b)) the Borrower or by would be able to make, at such time, an additional Restricted Payment pursuant to subsection 8.7(b); provided further that the cumulative outstanding investment in any Restricted Subsidiary (other than any Special Purpose Subsidiary) on the date that such Restricted Subsidiary is converted to an Unrestricted Subsidiary in any other Restricted Subsidiaryconformity with subsection 8.17 shall be deemed an investment made on such conversion date in an Unrestricted Subsidiary for purposes of determining compliance with this subsection 8.8(g); and
(h) promissory notes Investments by the Borrower or any Restricted Subsidiary in securities which trade on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market (including Investments existing on the Restatement Effective Date and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6listed on Schedule 8.8 hereof, but excluding Investments in Unrestricted Subsidiaries) in an aggregate amount (valued at cost) not to exceed $25,000,000 at any one time outstanding.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make The Company shall not make and shall not permit any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or its Subsidiaries to make any other investment Investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments"), any Person, except:
(ai) extensions of trade credit Investments represented by accounts receivable created or acquired in the ordinary course of business;
; (bii) advances to employees in the ordinary course of business; (iii) Permitted Investments; (iv) Investments made pursuant to Section 4.12; (v) Investments in Cash Equivalents;
(c) any Investment by the Borrower or any Restricted Wholly-Owned Subsidiary (other than including any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided person that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal pursuant to such Investment becomes a Wholly-Owned Subsidiary) and (B) the Borrower designates such Person, by notice any Person that is merged or consolidated with or into or transfers or conveys all or substantially all of its assets to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower Company or any Restricted Wholly-Owned Subsidiary at the time such Investment is made; (other than any Special Purpose Subsidiaryvi) Investments in Persons not engaged deposits with respect to leases or utilities provided to third parties in the telecommunications business or businesses related thereto if, after giving effect thereto, ordinary course of business; (vii) Investments in the aggregate amount of such Securities and the First Mortgage Notes; (viii) Investments then held in Interest Rate Protection Obligations Currency Agreements and commodity hedging agreements permitted by the Borrower and its Restricted Subsidiaries does not exceed clause (xviii) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (yxi) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and covenant "Limitation on Additional Indebtedness"; (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(fix) loans and or advances to officers or employees of the Borrower Company and its Restricted Subsidiaries in an the ordinary course of business for bona fide business purposes (including travel and moving expenses) not in excess of $1,000,000 in the aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstanding;
; (gx) Investments in evidences of Indebtedness, securities or other property received from another Person by the Borrower Company or any of its Subsidiaries in connection with any bankruptcy proceeding or by reason of a composition or readjustment of debt or a reorganization of such person or as a result of foreclosure, perfection or enforcement of any Lien in exchange for evidences of Indebtedness, securities or other property of such Person held by the Company or any of its Restricted Subsidiaries, or for other liabilities or obligations of such other Person to the Company or any of its Subsidiaries that were created in accordance with the terms of this Indenture; (xi) Investments consisting of the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons; (xii) Investments consisting of purchases and acquisitions of inventory, supplies, materials and equipment or licenses or leases of intellectual property, in any case, in the ordinary course of business; (xiii) any Investment in securities or other assets not constituting cash or Cash Equivalents and received in connection with an Asset Sale made pursuant to the provisions of Section 4.13 or any other disposition of assets not constituting an Asset Sale; (xiv) any Investment existing on the Issue Date; (xv) Currency Agreements or commodity agreements permitted under clause (xi) of Section 4.9; (xvi) Investments to the extent the payment for which by the Company or any Restricted Subsidiary consists of Capital Stock of the Company (other than any Special Purpose SubsidiaryDisqualified Capital Stock); provided, however, that such Capital Stock will not increase the amount available for Restricted Payments under clause (a)(ii) in the Borrower or of Section 4.12 and (xvii) Investments permitted by any Restricted Subsidiary (Section 4.12. Investments other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; and
(h) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are those permitted by subsection 6.6the foregoing provisions are referred to herein as "Prohibited Investments."
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make The Borrower shall not, and shall not permit any of its Subsidiaries to, make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advancesany of the foregoing, loans, extensions of credit, capital contributions, purchases and investments being herein called an "InvestmentsINVESTMENT"), any Person, exceptexcept for:
(a) the Borrower's ownership interest in its Subsidiaries and certain Subsidiaries' ownership interests in certain other Subsidiaries, in each case on or prior to the Second Closing Date and as set forth in Section 3.30;
(b) investments in marketable securities, liquid investments and other financial instruments that are acquired for investment purposes and that have a value which may be readily established and which are investment grade, including any such investment that may be readily sold or otherwise liquidated;
(c) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower or its Subsidiaries for travel, entertainment and its Restricted Subsidiaries relocation expenses in the ordinary course of business;
(e) investments constituting non-cash consideration received in connection with an Asset Disposition, provided that such non-cash consideration shall not exceed 15% of the aggregate principal consideration received for such Asset Disposition; and provided further that the aggregate amount outstanding of any such non-cash consideration with respect to all Asset Dispositions shall not to exceed $10,000,000 5,000,000 at any one time outstanding;
(f) investments in existence as of the Initial Closing Date, as set forth on Schedule 12;
(g) Investments Acquisitions; provided that (i) the aggregate Consideration with respect to any Acquisition shall not exceed the sum of (A) the Net Proceeds of any Equity Offerings available for such purpose, (B) 25% of Excess Cash Flow not required for the mandatory repayment described in Section 2.6(b) and otherwise available for such purpose, (C) the Aggregate Available Revolving Loan Commitment at such time LESS $25,000,000 and (D) the Aggregate Incremental Loan Commitment LESS the aggregate principal amount of Incremental Loans, if any, made hereunder (regardless of whether such Incremental Loans have been repaid or are outstanding); (ii) no Default has occurred and is continuing or would result from the consummation of such Acquisition (and the Borrower shall have delivered a Covenant Compliance Certificate showing PRO FORMA calculations assuming such Acquisition had been consummated to the Administrative Agent); (iii) the Acquisition (if of a radio or television station), has received (except as set forth below with regard to the Modesto Station) final FCC approval and evidence thereof satisfactory to the Administrative Agent has been provided to the Administrative Agent; (iv) the Administrative Agent shall have received, reviewed and approved (such approval not to be unreasonably withheld) the form of all documents setting forth the terms of, effecting or otherwise relating to, such Acquisition; (v) the Borrower shall be in compliance with the Total Debt Ratio on a PRO FORMA basis assuming such Acquisition had been consummated; and (vi) the Administrative Agent shall have received, reviewed and approved all documents (the "ACQUISITION SECURITY DOCUMENTS") reasonably requested by the Borrower in its Restricted Subsidiaries Administrative Agent to insure that the Lenders have a first priority security interest in, and Investments assignment of, any Program Services Agreements and all material real property and all other assets and interests acquired, including consents of third parties if reasonably requested by any Restricted Subsidiary (other than any Special Purpose Subsidiary) the Managing Agents; provided further that, notwithstanding the foregoing, in the Borrower event that (x) the Second Closing Date has occurred, (y) the purchase of the Modesto Station has been provided for pursuant to the escrow terms contemplated by the Modesto Station Purchase Agreement and (z) the Administrative Agent has received (A) evidence that preliminary FCC approval has been obtained with respect to such purchase and (B) all Acquisition Security Documents requested by the Administrative Agent in connection therewith, THEN the acquisition of the Modesto Station may be consummated in accordance with the terms of the Modesto Station Purchase Agreement;
(h) investments permitted under Section 6.2(h);
(i) investments not otherwise referred to in this Section 6.7 in an aggregate amount not to exceed $50,000,000 during the term of this Agreement, provided that no such investment shall be permitted if at the time of the making thereof a Default has occurred and is continuing or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiarywould result from the making of such investment; and
(hj) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are investments in Entravision permitted by subsection 6.6Section 3.15(a)(ii)(D). Notwithstanding the foregoing, the License Subsidiaries shall not be permitted, under any circumstances, to make any investments.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in Cash Equivalents;
(c) any Investment the acquisition of the assets (and related liabilities) constituting a radio station (including the right to hold and operate all related Licenses issued by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided FCC); PROVIDED that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, no Default or Event of Default shall have occurred or be continuing and (ii) on a pro forma basis, the Special Payment Condition Borrower shall be satisfied, in compliance with subsection 6.1 as of the last day of the period of four fiscal quarters for which financial statements have most recently been provided that (assuming such acquisition (and any incurrence of Indebtedness) had occurred on the first day of such period) and (iii) the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) provided the Borrower designates such Person, by notice to Agent with the Administrative Agent, as an Unrestricted Subsidiary and necessary calculations under clause (ii) immediately prior in certificate form and after giving effect in sufficient detail reasonably satisfactory to such Investment, the Borrower is in Pro Forma Compliance;Agent.
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged investments in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma ComplianceLoan Parties;
(e) any Investment arising from the acquisition by loans and advances to officers, directors and other employees of the Borrower and or its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that for (i) to commissions and travel and entertainment expenses in the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions ordinary course of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith business and (ii) immediately prior relocation expenses and after giving effect to such Investment the Borrower is in Pro Forma Complianceother similar expenses;
(f) loans and advances by the Borrower to its employees or employees of the Borrower and its Restricted Subsidiaries in connection with management incentive plans in an aggregate principal amount outstanding not to exceed $10,000,000 1,000,000 in the aggregate at any one time outstanding;
(g) Investments by investments, loans and advances in existence on the Borrower in its Restricted Subsidiaries date hereof and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in listed on Schedule 6.9, and extensions, renewals, modifications or restatements thereof; provided the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiaryamount thereof is not increased; and
(h) promissory notes if in the reasonable judgment of the Borrower or any of its Subsidiaries, any customer is deemed to be in a reorganization or unable to make a timely cash payment on Indebtedness of such customer owing to it, each of the Borrower and its Subsidiaries may invest in securities issued by such customer or any affiliate thereof in lieu of cash payments; PROVIDED that the Borrower or such Subsidiary, as the case may be, has paid no new consideration (other deferred payment obligations that constitute proceeds than forgiveness of Asset Sales that are permitted by subsection 6.6Indebtedness) therefor.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting all or a material part of a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in Cash Equivalents;
(c) any Investment Guarantee Obligations permitted by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma ComplianceSection 7.2;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower or its Subsidiaries in the ordinary course of business (including, without limitation, for travel, entertainment and its Restricted Subsidiaries relocation expenses) in an aggregate principal amount outstanding for the Borrower and its Subsidiaries not to exceed $10,000,000 500,000 at any one time outstanding;
(e) so long as no Default or Event of Default shall have occurred and be continuing, the purchase of all or substantially all of the assets of Saint Maxim, a company organized in Taiwan, for aggregate consideration not in excess of $250,000;
(f) the Tender Offer and the Pre-Merger Transactions;
(g) Investments investments made by the Borrower in or any of its Restricted Subsidiaries and Investments with the proceeds of any Reinvestment Deferred Amount;
(h) investments, loans or advances by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or any of its Subsidiaries in or to the Borrower or any Person that, prior to such investment, loan or advance is a Subsidiary Guarantor that is a Domestic Subsidiary;
(i) cash pledged to the Lenders pursuant to the Loan Documents;
(j) investments by any Restricted Subsidiary the Borrower or its Subsidiaries in Interest Rate Protection Agreements required by Section 6.9;
(other than any Special Purpose Subsidiaryk) investments in any other Restricted Subsidiarythe form of intercompany Indebtedness permitted by Section 7.2(b) and (j); and
(hl) promissory notes so long as no Defaultor Event of Default shall have occurred and be continuing, other deferred payment obligations that constitute proceeds investments by the Borrower or any Subsidiary or any Person having an aggregate (for all said investments) fair market value (measured as of Asset Sales that are permitted by subsection 6.6the date such investment is made) not to exceed $3,000,000.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting all or a material part of a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any PersonPerson (collectively, “Investments”), except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) any Investment Guarantee Obligations permitted by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma ComplianceSection 7.2;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees or directors of the Parent Borrower or its Subsidiaries in the ordinary course of business (including for travel, entertainment and relocation expenses) in an aggregate amount for the Parent Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 5,000,000 at any one time outstanding, provided, however that this provision shall not limit key man insurance;
(e) the investment by the Parent Borrower or its Subsidiaries of accounts receivable or related rights and assets pursuant to a Receivables Transfer Program into a Subsidiary;
(f) Investments made by the Parent Borrower or any of its Subsidiaries with the proceeds of any Reinvestment Deferred Amount;
(g) Investments by the Parent Borrower or any of its Subsidiaries in the Parent Borrower or any Subsidiary Guarantor in the ordinary course of business;
(h) Investments (including debt obligations and Capital Stock) by the Parent Borrower or its Restricted Subsidiaries received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;
(i) so long as no Default or Event of Default shall have occurred and be continuing, the Parent Borrower or any Subsidiary may make advances, loans or extensions of credit to any Foreign Subsidiary or Foreign Subsidiary Holdco, provided that the Indebtedness of such Foreign Subsidiary or Foreign Subsidiary Holdco is permitted under Section 7.2(k);
(j) in addition to Investments otherwise permitted by this Section 7.8, so long as no Default or Event of Default shall have occurred and be continuing, Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Parent Borrower or any of its Subsidiaries; provided that (x) to the extent such Investments consist of equity investments (by any Restricted Subsidiary (other than any Special Purpose Subsidiaryway of capital contribution or otherwise) in any Subsidiary, the requirements of Section 6.9 are satisfied and (y) the Consolidated Senior Secured Leverage Ratio of the Parent Borrower and its Subsidiaries, computed on a pro forma basis (giving effect to such Investments and any Indebtedness incurred in connection therewith) as at the last day of the most recently ended fiscal quarter of the Parent Borrower and its Subsidiaries for which financial statements are available, is no greater than the Consolidated Senior Secured Leverage Ratio that is 0.25x lower than the Consolidated Senior Secured Leverage Ratio in effect for such fiscal quarter under Section 7.1(a);
(k) other Restricted SubsidiaryInvestments constituting Permitted Business Acquisitions; and
(hl) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are in addition to Investments otherwise permitted by subsection 6.6this Section 7.8, so long as no Default or Event of Default shall have occurred and be continuing, Investments by the Parent Borrower or any of its Subsidiaries in an aggregate amount (valued at cost) not to exceed $50,000,000 since the Closing Date.
Appears in 1 contract
Samples: Credit Agreement (Conmed Corp)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment investment, in cash or by transfer of assets or property, in (such advanceseach, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments"an “Investment”), any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) any Investment by Investments existing on the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) Closing Date and described in Persons engaged in Schedule 7.9(c), setting forth the telecommunications business or businesses related thereto, provided that (i) respective amounts of such Person, if it shall be Investments as of a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliancerecent date;
(d) any Investment by the Borrower or any Restricted Subsidiary (Investments in notes receivable and other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower instruments and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired securities obtained in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, transactions permitted by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliancesubsection 7.6(a)(iii);
(e) any Investment arising from the acquisition by loans and advances to officers, directors or employees of Holdings, the Borrower and or any of its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to in the extent that the Borrower ordinary course of business for travel and its Restricted Subsidiaries give consideration for the System entertainment or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange thereforrelocation expenses, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior existing on the Closing Date and described in Schedule 7.9(c), (iii) made after giving effect the Closing Date for other purposes, not to exceed (as to Holdings and all its Subsidiaries), together with the amount of all Guarantee Obligations permitted pursuant to subsection 7.4(d)(iii), $4,000,000 in the aggregate outstanding at any time or (iv) relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in any such Investment the Borrower is capacity or as otherwise specified in Pro Forma Compliancesubsection 7.11;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstanding;
(gi) Investments by the Borrower in its Restricted Wholly Owned Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) such Subsidiaries in the Borrower or and in Wholly Owned Subsidiaries of the Borrower; provided that the aggregate amount of Investments made by any Restricted Subsidiary (other than any Special Purpose Subsidiary) Loan Party in any other Restricted SubsidiarySubsidiary that is not a Loan Party shall not exceed $20,000,000 in the aggregate at any one time outstanding; provided further that in addition to the foregoing amounts, any Loan Party may make Investments in any Subsidiary that is not a Loan Party in an amount not exceeding the aggregate amount of dividends paid by such non-Loan Party Subsidiary to any Loan Party; and
(h) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6.
Appears in 1 contract
Samples: Credit Agreement (Sirva Inc)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in Cash Equivalents;
(c) any Investment by loans and advances to officers, directors and other employees of the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that its Subsidiaries for (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds commissions and travel and entertainment expenses in the ordinary course of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary business and (ii) immediately prior relocation expenses and after giving effect to such Investment, the Borrower is other similar expenses in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the an aggregate amount of such Investments then held by for the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 5,000,000 in the aggregate at any one time outstanding;
(gd) Investments loans by the Borrower to its employees or employees of its Subsidiaries in connection with management incentive plans in an amount not to exceed $5,000,000 in the aggregate at any one time outstanding;
(e) investments by the Borrower and its Subsidiaries in existence on the date hereof in non-Domestic Subsidiaries and other investments, loans and advances in existence on the date hereof in an aggregate amount not exceeding $1,000,000, and extensions, renewals, modifications or restatements thereof;
(f) if in the reasonable judgment of the Borrower or any of its Subsidiaries, any customer is deemed to be in a reorganization or unable to make a timely cash payment on indebtedness of such customer owing to it, each of the Borrower and its Subsidiaries may invest in securities issued by such customer or any affiliate thereof in lieu of cash payments; PROVIDED that the Borrower or such Subsidiary, as the case may be, has paid no new consideration (other than forgiveness of Indebtedness or other obligations) therefor;
(i) investments by the Borrower in its Restricted Subsidiaries which are or, immediately after giving effect thereto, become parties to the Subsidiary Guarantee and Investments the Capital Stock of which is pledged to the Collateral Agent to secure the Borrower's obligations hereunder and under the other Loan Documents, (ii) investments by any Restricted Subsidiaries which are not parties to the Subsidiary Guarantee in other Subsidiaries, (iii) investments by the Borrower and its Subsidiaries in non-Domestic Subsidiaries; PROVIDED that the aggregate amount of such investments, together with (without duplication) the aggregate amount of investments in non-Domestic Subsidiaries permitted under subparagraph 10.9(h) below, shall not exceed $50,000,000 in the aggregate, and (iv) investments by Subsidiaries which are parties to the Subsidiary Guarantee in the Borrower and in other Subsidiaries which are parties to the Subsidiary Guarantee and the Capital Stock of which is pledged to the Collateral Agent to secure the Borrower's obligations hereunder and under the Loan Documents;
(h) so long as after giving effect thereto no Default or Event of Default shall have occurred and be continuing, acquisitions of, or investments in, one or more businesses or lines of business, in an aggregate amount (which amount shall include Indebtedness assumed or incurred as permitted by clauses (x), (y) and (z) of subsection 10.2(e)) not to exceed $300,000,000 in the aggregate plus the amount of equity contributions (other than any Special Purpose such equity which is mandatorily redeemable prior to November 30, 2009) to the Borrower after the Closing Date which equity contributions do not constitute Specified Equity Contributions; PROVIDED that the aggregate amount of such acquisitions and investments in non-Domestic Subsidiaries, together with (without duplication) the aggregate amount of investments in non-Domestic Subsidiaries permitted under subsection 10.9(g)(iii) above, shall not exceed $50,000,000 in the aggregate; PROVIDED, FURTHER, that if any such acquisition or investment results in the creation or acquisition of a Subsidiary, 100%, or in the case of a non-Domestic Subsidiary 65%, of the Capital Stock of such Subsidiary owned directly or indirectly by the Borrower shall be pledged to the Collateral Agent to secure the Borrower's obligations hereunder and under the other Loan Documents, such Subsidiary (if a Domestic Subsidiary) shall become a party to the Guarantee and the Security Documents, and shall deliver such financing statements and other documents and instruments as may be required by the Agents to create and perfect a Lien in the Collateral under the Security Documents;
(i) investments in the Receivables Subsidiary (i) consisting of the contribution of receivables by Borrower or and its Subsidiaries and (ii) other investments in the Receivables Subsidiary by Borrower and its Subsidiaries in an aggregate amount outstanding at any time not to exceed $5,000,000 as such amount may be reduced by any Restricted Subsidiary write down or realized loss;
(other than j) any Special Purpose Subsidiary) in redemption or repurchase by the Borrower of any other Restricted Subsidiaryof the Convertible Notes or Existing Senior Notes or Existing Senior Subordinated Notes permitted by subsection 10.10(a); and
(hk) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6investments, loans or advances in an aggregate amount not exceeding $10,000,000.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Personother Person (“Investments”), except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) any Investment guarantees permitted by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliancesubsection 7.2;
(d) any Investment by (i) Investments in the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto ifof its Subsidiaries, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect Investments in LIN TV, so long as a Restricted Payment for the same purpose would then be permitted to be made under subsection 7.6 (it being understood that any such Investment, Investment made in reliance on this clause (ii) shall reduce to an equivalent extent the Borrower is in Pro Forma ComplianceRestricted Payments permitted by subsection 7.6);
(e) any Investment arising from the acquisition loans and advances by the Borrower or its Subsidiaries to their respective directors, officers and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed exceeding $10,000,000 5,000,000 at any one time outstanding;
(f) Investments in existence on the Effective Date and listed on Schedule 7.8(f), and extensions, renewals, modifications or restatements or replacements thereof, provided that no such extension, renewal, modification or restatement shall (i) increase the amount of the original Investment or (ii) adversely affect the interests of the Lenders with respect to such original Investment or the interests of the Lenders under this Agreement or any other Loan Document in any material respect;
(g) Investments permitted by the Borrower in its Restricted Subsidiaries subsections 7.2(b), (d), (f) and (l), subsections 7.4 and 7.6 and Investments constituting Capital Expenditures permitted by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; andsubsection 7.7;
(h) Capital Stock, promissory notes and other deferred payment obligations that constitute proceeds similar non-cash consideration received by the Borrower or any of Asset Sales that are its Subsidiaries in connection with any Sale permitted by subsection 6.6.7.5, including Capital Stock, promissory notes and other similar non-cash consideration received in connection with Permitted Acquisitions or Asset Swap Transactions;
(i) Investments in Interest Rate Protection Agreements relating to the businesses and finances of the Borrower or any of its Subsidiaries and not for purposes of speculation;
(j) Investments (including debt obligations and Capital Stock) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;
(k) in addition to Investments otherwise expressly permitted by this subsection, Investments made after the Effective Date by the Borrower and its Subsidiaries in an aggregate amount not exceeding $100,000,000 (valued at cost, without regard to any write down or write up thereof) at any one time outstanding, provided that after giving effect thereto no Default or Event of Default shall have occurred and be continuing at the time of commitment by the Borrower or its Subsidiary to such Investment (including, without limitation, pursuant to subsection 7.1);
(l) Investments after the Effective Date by the Borrower and its Subsidiaries constituting Permitted Acquisitions or Asset Swap Transactions; (m) Investments of Net Cash Proceeds not required to be applied to the prepayment of Term Loans pursuant to subsection 2.9 and not otherwise utilized pursuant to subsection 7.7(b);
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make None of Holdings, the Company or any of the Subsidiaries of the Company shall make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, except:
(a) extensions (i) the Company may make investments in, or loans or advances to, any Subsidiary of trade credit the Company (other than any Foreign Subsidiary of the Company and other than any Subsidiaries of the Company that are not parties to the Subsidiary Guarantee and Subsidiary Security Agreement and whose stock in not pledged by the Company to the Administrative Agent on behalf of the Banks), (ii) any Subsidiary of the Company may make investments in, or loans or advances to, the Company or any other Subsidiary of the Company and (iii) Holdings may make investments in, or loans or advances to, any of its Subsidiaries;
(i) any Subsidiary may make investments in the Company (by way of capital contribution or otherwise) and (ii) the Company and any Subsidiary may make investments in, or create, any wholly-owned Domestic Subsidiary (by way of capital contribution or otherwise) or make investments permitted by subsection 7.5(e), provided that, in any such case (other than an investment in a Real Estate Holding Subsidiary in connection with any Real Estate Financing or any Subsidiary formed solely for the purpose of an Accounts Receivable Financing) if stock is issued or otherwise acquired in connection with such investment, such stock is pledged to the Administrative Agent for the benefit of the Banks and, if a new Subsidiary is formed or created, such Subsidiary becomes a party to the Subsidiary Guarantee and the Subsidiary Security Agreement;
(c) Holdings and its Subsidiaries may invest in, acquire and hold Cash Equivalents;
(d) Holdings or any of its Subsidiaries may make travel and entertainment advances and relocation loans to officers and employees of the Company or any such Subsidiary, provided that the aggregate principal amount of all such loans and advances outstanding at any one time, together with the guarantees made pursuant to subsection 7.3(b), shall not exceed $10,000,000;
(e) Holdings or any of its Subsidiaries may make payroll advances in the ordinary course of business;
(bf) Investments Holdings or any of its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in Cash Equivalentsthe ordinary course of business and payable or dischargeable in accordance with customary trade terms (provided that nothing in this clause (f) shall prevent Holdings or any Subsidiary from offering such concessionary trade terms, or from receiving such investments in connection with the bankruptcy or reorganization of their respective suppliers or customers or the settlement of disputes with such customers or suppliers arising in the ordinary course of business, as management deems reasonable in the circumstances);
(cg) the Company and its Subsidiaries may make loans and advances permitted by subsection 7.10;
(h) Holdings and its Subsidiaries may make loans and advances to employees and former employees of Holdings and its Subsidiaries for the purpose of financing the purchases by them of shares of capital stock of Holdings in an aggregate principal amount at any Investment one time outstanding not to exceed $10,000,000, plus the amounts of any proceeds of such loans and advances paid by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged such employees and former employees to Holdings on account of such purchases and contributed by Holdings as equity in the telecommunications business or businesses related thereto, provided that Company;
(i) such the Company and its Subsidiaries may make an acquisition of all or any substantial part of the capital stock or assets of any other Person, if it shall be a Subsidiarysuch acquisition, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to in the Borrower expressly for such purpose and/or (II) funds good faith opinion of the Borrower Company as specified in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative AgentAgent and the Banks, as is functionally equivalent to a Capital Expenditure;
(j) Holdings and its Subsidiaries may make acquisitions of all or any substantial portion of the capital stock or assets of other Persons; provided that the consideration paid by the Company or any of its Subsidiaries for all such acquisitions (exclusive of any acquisition pursuant to paragraph (i) of this subsection 7.6) does not exceed $5,000,000 in each fiscal year;
(k) the Company may, at or prior to any closing under any Real Estate Financing, make an Unrestricted Subsidiary investment in the special-purpose finance vehicle established or to be established in connection with such Real Estate Financing in an amount not in excess of the sum of (i) transaction costs incurred in connection with such Real Estate Financing and (ii) immediately an amount which is in the reasonable judgment of the Company nominal relative to such Real Estate Financing;
(l) loans, advances or contributions by the Company and its Subsidiaries to the Company's Foreign Subsidiaries or joint ventures which, directly or indirectly, own the Company's interest in its foreign stores or operations for the purpose of financing the acquisition, construction and operation thereof in an aggregate amount not to exceed the greater of (i) $50,000,000 and (ii) if Holdings receives senior unsecured ratings from both S&P and Xxxxx'x of BBB- and Baa3, respectively, 10% of the Consolidated Net Worth of Holdings as of the date of the most recent financial statements delivered by the Company pursuant to subsection 6.1(a) or (b) prior and to the making of such loan, advance or contribution;
(m) the acquisition by Holdings, the Company or any of their respective Subsidiaries of all or any substantial part of the capital stock or assets of any other Person (including in connection with the initial capitalization of such other Person) or of the assets of any other Person constituting a line of business thereof if the Remaining Strategic Capital Amount is not less than zero after giving effect to such Investment, the Borrower is in Pro Forma Compliance;acquisition; and
(dn) any Investment by the Borrower or any Restricted Subsidiary investments (other than any Special Purpose Subsidiaryincluding, without limitation, extensions of credit) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 30,000,000 at any one time outstanding;
(g) Investments outstanding relating to the sale by the Borrower Company or any Subsidiary of the Company of any assets or property thereof in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; and
(h) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by accordance with subsection 6.67.5.
Appears in 1 contract
Samples: Credit Agreement (Saks Holdings Inc)
Limitation on Investments, Loans and Advances. Make or allow to remain outstanding any advance, loan, extension Investment (whether such investment shall be of credit or capital contribution to, or purchase any the character of investment in shares of stock, bonds, notes, debentures evidences of indebtedness or other securities of or otherwise) in, or any assets constituting a business unit of, loans or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")advances to, any Person, exceptPerson other than:
(a) extensions of trade credit Permitted Investments;
(b) Investments existing on the Closing Date and listed on Schedule 8.7 to the Disclosure Letter;
(c) sales on open account in the ordinary course of business;
(bd) intercompany loans or intercompany Investments made by any Credit Party to or in Cash Equivalents;
(c) any Guarantor or Borrower; provided that, in each case, no Default or Event of Default shall have occurred and be continuing at the time of making such intercompany loan or intercompany Investment by the Borrower or result from such intercompany loan or intercompany Investment being made and that any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Personintercompany loans shall, if it shall requested by Agent, be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed evidenced by and funded under an Intercompany Note pledged to the Borrower expressly for such purpose and/or (II) funds of Agent under the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Complianceappropriate Collateral Documents;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System Intercompany loans or Systems in connection with any Asset Swap, provided that (i) intercompany Investments to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap a Credit Party that is that is not a Guarantor or Borrower; provided that, the aggregate amount from time to time outstanding in addition to the System or Systems transferred by them respect thereof shall not exceed Five Million Dollars ($5,000,000) in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Complianceany Fiscal Year;
(f) Investments in respect of Hedging Transactions provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(g) Investments not to exceed Two Million Five Hundred Thousand Dollars ($2,500,000) in the aggregate consisting of (i) travel advances and employee relocation loans and other employee loans and advances in the ordinary course of business, and (ii) loans to employees employees, officers or directors relating to the purchase of Equity Interests of Borrower or its Subsidiaries pursuant to employee stock purchase plan agreements approved by Borrower’s Board of Directors;
(h) joint ventures or strategic alliances in the ordinary course of Borrower’s business consisting of the license of technology, the development of technology or the providing of technical support, provided that any cash Investments by Borrower do not exceed $2,500,000 in any Fiscal Year;
(i) Permitted Acquisitions and its Restricted Subsidiaries Investments in any Person acquired pursuant to a Permitted Acquisition;
(j) Investments constituting deposits made in connection with the purchase of goods or services in the ordinary course of business or in satisfaction of requirements imposed by governmental authorities in an aggregate principal amount outstanding for such deposits not to exceed $10,000,000 2,500,000 at any one time outstanding;
(gk) Investments by accepted in connection with permitted transfers under Section 8.4;
(l) Investments consisting of notes receivable of, or prepaid royalties and other credit extensions, to customers and suppliers who are not Affiliates, in the ordinary course of business; provided that this subparagraph shall not apply to Investments of Borrower in its Restricted Subsidiaries any Subsidiary;
(m) Investments (including debt obligations) received in connection with the bankruptcy or reorganization of customers or suppliers and Investments by any Restricted Subsidiary (in settlement of delinquent obligations of, and other than any Special Purpose Subsidiary) disputes with, customers or suppliers arising in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; andordinary course of business;
(hn) promissory notes and Investments made prior to the consummation of any Permitted Acquisition consisting of reasonable xxxxxxx money deposits, working fees or other deferred payment obligations similar prepaid consideration or similar amounts that constitute proceeds would be applied toward consideration upon consummation of Asset Sales that are permitted by subsection 6.6.such Permitted Acquisition (in each case whether or not refundable under any circumstances);
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Quinstreet, Inc)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment investment, in cash or by transfer of assets or property, in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments"each an “Investment”), any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) any Investment by Investments existing on the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) Closing Date and described in Persons engaged in Schedule 8.9(c), setting forth the telecommunications business or businesses related thereto, provided that (i) respective amounts of such Person, if it shall be Investments as of a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliancerecent date;
(d) any Investment Investments in notes receivable and other instruments and securities obtained in connection with transactions permitted by subsection 8.6(a)(iii);
(e) loans and advances to officers, directors or employees of Holding, the Borrower or any Restricted Subsidiary of their respective Subsidiaries (other than any Special Purpose Subsidiaryi) in Persons not engaged the ordinary course of business for travel and entertainment or relocation expenses, (ii) existing on the Closing Date and described in Schedule 8.9(c), or (iii) relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity or as otherwise specified in subsection 8.11;
(f) (i) Investments by the Borrower in its Wholly Owned Subsidiaries and by such Subsidiaries in the telecommunications business or businesses related thereto ifBorrower and in Wholly Owned Subsidiaries of the Borrower, provided that the aggregate amount of Investments made by any Loan Party after giving effect theretothe date hereof in any Subsidiary that is not a Loan Party shall not exceed $3,000,000 at any one time outstanding, (ii) Investments in Holding in amounts and for purposes for which dividends are permitted under subsection 8.7, provided that at no time does the aggregate amount of such Investments then held and relevant dividends exceed the permitted amount of such dividends and (iii) Investments by the Borrower and or one of its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurredin A.L. Movers Private Ltd., $50,000,000an Indian joint venture, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstanding400,000 in aggregate principal amount;
(g) Investments by the Borrower and its Subsidiaries under Permitted Hedging Arrangements, including Investments of the Borrower under Interest Rate Protection Agreements relating to Indebtedness of the Borrower under this Agreement;
(h) Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business or otherwise described in subsection 8.3(c), (d) or (f);
(i) Investments representing non-cash consideration received by the Borrower or any of its Restricted Subsidiaries in connection with any Asset Sale;
(j) Investments representing evidences of Indebtedness, securities or other property received from another Person by the Borrower or any of its Subsidiaries in connection with any bankruptcy proceeding or other reorganization of such other Person or as a result of foreclosure, perfection or enforcement of any Lien or exchange for evidences of Indebtedness, securities or other property of such other Person held by the Borrower or any of its Subsidiaries, provided that in the event that the aggregate expected value of such securities or other property received with respect to a Person is less than $250,000, the Borrower or such Subsidiary may dispose of such securities and other property within 180 days of the receipt thereof;
(k) loans to Local Agents and Owner/Operators in the ordinary course of business for working capital purposes, and Investments by the Borrower and its Subsidiaries represented by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Financing Lease or conditional sale of equipment by the Borrower or any of its Subsidiaries to Local Agents or Owner/Operators, in an aggregate amount not to exceed $3,500,000 outstanding at any one time, provided that such amount shall be reduced by the aggregate principal amount of loans and advances in respect of Guarantee Obligations permitted by subsection 8.4(i);
(l) Investments constituting, or acquired with amounts constituting, reserves or surplus maintained by any Restricted Insurance Subsidiary in accordance with any Requirement of Law in respect of obligations pursuant to insurance policies issued by such Insurance Subsidiary in the ordinary course of its insurance business;
(other than m) loans and advances by the Borrower or any Special Purpose Subsidiaryof its Subsidiaries to Holding expressly permitted by subsection 8.7;
(n) in loans and advances made by CRS Holding, SRHL, any of their respective Subsidiaries or any other Restricted SubsidiarySubsidiary of the Borrower primarily engaged in the Employee Relocation Business for the purpose of financing a portion of the purchase price for the acquisition of residential real estate, fixtures or related assets, provided that such loans and advances are made by CRS Holding, SRHL or any such Subsidiaries in the ordinary course of business in connection with the provision of relocation services; and
(ho) promissory notes Investments comprised of loans, advances or dividends to Holding to allow Holding to capitalize a Relocation SPV; provided that (i) the aggregate amount of all such Investments outstanding at any time shall not exceed an amount that is equal to $30,000,000, and other deferred payment obligations that constitute proceeds (ii) within five Business Days after the making of Asset Sales that are permitted such Investment, the Relocation SPV shall have acquired from the Borrower or any of its Subsidiaries assets pursuant to subsection 8.6(a)(x) or repaid all amounts owed by subsection 6.6the Relocation SPV to the Borrower or any of its Subsidiaries, in an amount substantially equal (after giving effect to any ordinary course discounts in connection with such transactions) to the amount of such Investment.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make The Borrower shall not, and shall not permit any of its Included Subsidiaries to, make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advancesany of the foregoing, loans, extensions of credit, capital contributions, purchases and investments being herein called an "Investmentsinvestment"), any Person, exceptexcept for:
(a) investments in marketable securities, liquid investments and other financial instruments that are acquired for investment purposes and that have a value which may be readily established, including any such investment that may be readily sold or otherwise liquidated in any Fund or in any investment company managed by any Joint Venture pursuant to an investment advisory agreement;
(b) any investment in any Included Subsidiary of the Borrower or in any other Person principally engaged in the business of providing investment advisory services and related (including distribution and shareholder servicing) services, PROVIDED that, after giving effect to any such investment in any such other Person, such other Person is a Subsidiary or a Joint Venture;
(c) any investment in any Banking Subsidiary or in any other Person which, after giving effect to any such investment, is a Banking Subsidiary;
(d) extensions of trade credit in the ordinary course of business;
(be) Investments in Cash Equivalents;
(c) any Investment by loans to officers of the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired of its Subsidiaries consistent with (I) proceeds past practices of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurredSubsidiaries, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower or its Subsidiaries for travel, entertainment and its Restricted Subsidiaries relocation expenses in the ordinary course of business;
(f) investments in the Finance Subsidiary;
(g) investments constituting non-cash consideration received in connection with an Asset Disposition, PROVIDED that such non-cash consideration shall not exceed 25% of the aggregate principal consideration received for such Asset Disposition; and PROVIDED FURTHER that the aggregate amount outstanding of any such non-cash consideration with respect to Asset Dispositions shall not to exceed $10,000,000 at any one time outstanding;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; and
(h) promissory notes other investments in an aggregate amount as to the Borrower and its Subsidiaries (other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6than the Banking Subsidiaries and the Finance Subsidiary) not exceeding $125,000,000 for the period since the Closing Date.
Appears in 1 contract
Samples: Five Year Facility Credit Agreement (Franklin Resources Inc)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advanceseach, loans, extensions of credit, capital contributions, purchases and investments being herein called an "InvestmentsInvestment"), ) any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in Cash Equivalents;
(c) purchases of shares of the Capital Stock of any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons Person engaged in the telecommunications commercial radio business (which shall be deemed to include, without limitation, programming, production and distribution) or businesses any other business related theretoto the foregoing or purchases of the assets constituting all or any portion of any such business owned by any other Person, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal prior to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investmentpurchase, there shall exist no Default or Event of Default and the Borrower shall have delivered a certificate (with such supporting detail and calculations as may be reasonably requested by the Administrative Agent) from a Responsible Officer so stating and provided further, that any such Person which shall constitute a Subsidiary following such Investment shall be a Restricted Subsidiary or, as the case may be, the Borrower is in Pro Forma Complianceassets so purchased shall be owned by a Restricted Subsidiary;
(d) any Investment by loans and advances to officers and employees of the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to for travel, entertainment and relocation expenses and other purposes in the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% ordinary course of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliancebusiness;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstanding;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any such Restricted Subsidiary (other than any Special Purpose Subsidiary) Subsidiaries in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) and in any other Restricted SubsidiarySubsidiaries;
(f) Investments set forth on Schedule IV; and
(hi) promissory notes Investments in Unrestricted Subsidiaries as of the Effective Date, (ii) Investments in Unrestricted Subsidiaries the consideration for which shall consist solely of shares of the Capital Stock of the Borrower and other deferred payment obligations that constitute proceeds (iii) additional Investments in Unrestricted Subsidiaries during the period from and including December 31, 2002 to and including the Revolving Credit Commitment Termination Date in an aggregate amount which is not in excess of Asset Sales that are permitted by subsection 6.6the Unrestricted Investment Basket.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in Cash Equivalents;
(c) any Investment Guarantee Obligations permitted by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma ComplianceSection 7.2;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Parent Borrower or its Subsidiaries in the ordinary course of business (including, without limitation, for travel, entertainment and 72 67 relocation expenses) in an aggregate amount for the Parent Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 5,000,000 at any one time outstanding;
(e) the Acquisitions and the Bumble Bee Acquisition;
(i) investments by the Parent Borrower or any of its Subsidiaries in the Parent Borrower or any Wholly Owned Subsidiary Guarantor and (ii) investments by the Canadian Borrower or any of its Subsidiaries in the Canadian Borrower or any Canadian Subsidiary Guarantor;
(g) Investments by loans, advances or investments in existence on the Borrower in its Restricted Subsidiaries Amendment/Restatement Closing Date and Investments by listed on Schedule 7.8(g), and extensions, renewals, modifications or restatements or replacements thereof, provided that no such extension, renewal, modification or restatement shall (i) increase the amount of the original loan, advance or investment, or (ii) adversely affect the interests of the Lenders with respect to such original loan, advance or investment or the interests of the Lenders under this Agreement or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) Loan Document in any other Restricted Subsidiary; andrespect;
(h) investments made by the Parent Borrower or any of its Subsidiaries with the proceeds of any Reinvestment Deferred Amount or any Unapplied Excess Cash Flow;
(i) investments made by the Parent Borrower or any of its Subsidiaries pursuant to an Asset Swap or with the proceeds of any Contributed Equity, so long as, after giving pro forma effect thereto (as certified to the Administrative Agent by a Responsible Officer prior to consummation of such investment), no Default or Event of Default shall have occurred and be continuing (including, without limitation, pursuant to Section 7.1);
(j) Investments constituting Capital Expenditures permitted by Section 7.7;
(k) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are similar non-cash consideration received by the Parent Borrower and its Subsidiaries in connection with the Dispositions permitted by subsection 6.6Section 7.5;
(l) Investments consisting of Interest Rate Protection Agreements and commodity and currency hedging arrangements entered into in the ordinary course of business of the Parent Borrower or any of its Subsidiaries and not for purposes of speculation;
(m) Investments (including debt obligations and Capital Stock) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;
(n) Investments on customary terms required to create and capitalize a Receivables SPV;
(o) Permitted Investments, so long as, after giving pro forma effect thereto (as certified to the Administrative Agent by a Responsible Officer of the Parent Borrower prior to consummation of such investment), no Default or Event of Default shall have occurred and be continuing (including, without limitation, pursuant to Section 7.1);
(p) any acquisition of 80% or more of the Capital Stock of another Person or of assets constituting a business unit of another Person, so long as (i) after giving effect pro forma thereto (as certified to the Administrative Agent by a Responsible Officer of the Parent 73 68 Borrower prior to consummation of such acquisition), no Default or Event of Default shall have occurred and be continuing or would result therefrom (including, without limitation, pursuant to Section 7.1), (ii) after giving effect thereto and to the financing thereof, (x) the Consolidated Senior Leverage Ratio as at the end of the most recent period of four consecutive fiscal quarters for which the relevant financial information is available shall not exceed 3.75 to 1.0 and (y) the aggregate Available Revolving Credit Commitments shall equal at least $40,000,000, (iii) such acquisition shall have been approved by the Board of Directors of the Person being acquired or the relevant seller, as the case may be, and (iv) such acquisition shall involve businesses of the type in which the Borrower is already engaged in accordance with Section 7.14; and
(q) in addition to investments otherwise expressly permitted by this Section 7.8, investments by the Parent Borrower or any of its Subsidiaries in an aggregate amount (valued at cost) not to exceed $40,000,000 at any one time outstanding, so long as, after giving pro forma effect thereto (as certified to the Administrative Agent by a Responsible Officer of the Parent Borrower prior to consummation of such investment, in the case of any single investment in excess of $15,000,000), no Default or Event of Default shall have occurred and be continuing (including, without limitation, pursuant to Section 7.1).
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advanceseach, loans, extensions of credit, capital contributions, purchases and investments being herein called an "InvestmentsInvestment"), any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and or its Restricted Subsidiaries in the ordinary course of business in an aggregate principal amount outstanding for the Borrower and its Subsidiaries not to exceed $10,000,000 250,000 in the aggregate or $100,000 for any one employee, at any one time outstandingoutstanding (including the principal amount of the loans listed on SCHEDULE 7.8);
(d) Investments by the Borrower in its Subsidiaries and investments by a Subsidiary in the Borrower and in other Subsidiaries; PROVIDED that any Subsidiary making an investment or receiving the proceeds thereof is a member of the Borrower consolidated group for financial reporting and tax purposes;
(e) Investments of amounts held in depositary accounts (other than accounts assigned to the Agent) in financial institutions geographically proximate to the location of the Borrower's or a Subsidiary's operations; PROVIDED, that such amounts do not exceed $20,000 at any single institution or $150,000 in the aggregate;
(f) Loans by CSF to Labor World franchisees; PROVIDED that with respect to all such loans after the Closing Date such franchisees shall have issued a negotiable promissory note to CSF evidencing each loan which note has been endorsed and delivered to the Agent for the ratable benefit of the Banks;
(g) Investments by the Borrower or any Subsidiary in its Restricted Subsidiaries any Person not a Subsidiary on the Closing Date; PROVIDED that (i) any such Investment (whether made in one transaction or a series of transactions) does not exceed $10,000,000 (inclusive of commissions, fees and other transaction costs, but not including any portion of the Investments by with respect to which the consideration is the Capital Stock of the Borrower), (ii) all such Investments made after the Closing Date do not exceed $10,000,000 in the aggregate (inclusive of commissions, fees and other transaction costs, but not including any Restricted portion of the Investments with respect to which the consideration is the Capital Stock of the Borrower), (iii) any such acquired Person that is a Subsequently Acquired Subsidiary executes and delivers to the Agent, with a counterpart for each Bank, a supplement to the Subsidiary Guarantee, satisfactory in form and substance to the Agent, whereby such Subsequently Acquired Subsidiary guarantees the Obligations (other than any Special Purpose as defined in the Subsidiary Guarantee subject to the Maximum Guaranteed Amount, as defined therein, with respect to such Subsequently Acquired Subsidiary) and agrees to be bound by the terms and conditions of the Subsidiary Guarantee, (iv) the Capital Stock of any such acquired Person is pledged and delivered by the holder thereof pursuant to a supplement to the OI Pledge Agreement to which such holder is a party, duly authorized, executed and delivered by such holder and otherwise in form and substance satisfactory to the Agent, (v) any such acquired Person executes a Subsidiary Security Agreement, in form and substance satisfactory to the Agent, (vi) in connection with the matters contemplated by the foregoing clauses (iii), (iv) and (v) the Person executing such supplement contemporaneously therewith causes to be delivered an opinion of counsel to such Person so executing such supplement and such pledgor, addressed to the Agent and the Banks and covering such matters as the Agent may request and (vii) the prior written consent of the Banks has been obtained. Notwithstanding the foregoing, the Borrower or by any Restricted Subsidiary (other than shall not make any Special Purpose Subsidiary) Investment in any Person which exceeds one percent (1%) of the voting power represented by the Capital Stock then outstanding of such Person if the Board of Directors or other Restricted Subsidiary; and
(h) promissory notes and other deferred payment obligations that constitute proceeds governing body of Asset Sales that are permitted by subsection 6.6such Person has disapproved or recommended against any such Investment or refused to negotiate or terminated negotiations with the Borrower or such Subsidiary or which is not a Permitted Acquisition.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment investment, in cash or by transfer of assets or property, in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments"each an “Investment”), any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in cash and Cash Equivalents;
(c) Investments existing on the Closing Date and described in Schedule 8.8(c), setting forth the respective amounts of such Investments as of a recent date;
(d) Investments in notes receivable and other instruments and securities obtained in connection with transactions permitted by subsection 8.6(c) and Bond Prepayments permitted by subsection 8.13(a);
(e) loans and advances to officers, directors or employees of Holding or any Investment of its Subsidiaries (i) in the ordinary course of business for travel and entertainment expenses, (ii) existing on the Closing Date and described in Schedule 8.8(c), (iii) made after the Closing Date for relocation expenses in the ordinary course of business, (iv) made for other purposes in an aggregate amount (as to Holding and all of its Subsidiaries), together with the aggregate amount of all Guarantee Obligations permitted pursuant to subsection 8.4(f)(iii), of up to $10,000,000 outstanding at any time and (v) relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity or as otherwise specified in subsection 8.10;
(i) Investments by the Borrower in its Wholly Owned Subsidiaries (other than any Receivables Subsidiary) and Subsidiary Guarantors and by such Wholly Owned Subsidiaries and Subsidiary Guarantors in the Borrower, Wholly Owned Subsidiaries of the Borrower (other than any Receivables Subsidiary) and Subsidiary Guarantors and (ii) Investments in Holding in amounts and for purposes for which dividends are permitted under subsection 8.7;
(g) acquisitions expressly permitted by subsection 8.9;
(h) Investments of the Borrower and its Subsidiaries under Interest Rate Protection Agreements or under Permitted Hedging Arrangements;
(i) Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business or otherwise described in subsection 8.3(c), (d) or (f);
(j) Investments representing non-cash consideration received by the Borrower or any Restricted Subsidiary (other than of its Subsidiaries in connection with any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related theretoAsset Sale, provided that (i) in the case of any Asset Sale permitted under subsection 8.6(i), such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) non-cash consideration constitutes not more than 25% of the aggregate consideration received in connection with such Person or assets shall be acquired with (I) proceeds of capital contributed to Asset Sale and any such non-cash consideration received by the Borrower expressly for such purpose and/or (II) funds or any of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice its Domestic Subsidiaries is pledged to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect Agent for the benefit of the Lenders pursuant to such Investment, the Borrower is in Pro Forma ComplianceSecurity Documents;
(dk) any Investment by the Borrower or any Restricted and its Subsidiaries in a Receivables Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged which, in the telecommunications business judgment of the Borrower, is prudent and reasonably necessary in connection with, or businesses related thereto ifotherwise required by the terms of, after giving effect thereto, the aggregate amount of such any Permitted Receivables Transaction;
(l) Investments then held by the Borrower and or any of its Restricted Subsidiaries does in a Person in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Borrower or such Subsidiary in an aggregate amount not to exceed (x) at any time prior an amount equal to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization100,000,000; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets amount shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in increased by an amount equal to $10,000,000 on each anniversary of the Closing Date, so long as no Default or Event of Default shall have occurred and be continuing on any date on which such Investment amount is to be increased, (ii) such amount and any increase in such amount permitted by clause (i) shall be reduced by the aggregate principal amount of Indebtedness in respect of Guarantee Obligations permitted by subsection 8.4(p), and (Biii) the Borrower designates or such Person, by notice to Subsidiary complies with the Administrative Agent, an Unrestricted Subsidiary provisions of subsection 7.9(b) and (iic) immediately prior and after giving effect hereof, if applicable, with respect to such Investment, the Borrower is in Pro Forma Complianceownership interest;
(em) any Investment arising from the acquisition Investments in industrial development or revenue bonds or similar obligations secured by assets leased to and operated by the Borrower or any of its Subsidiaries that were issued in connection with the financing of such assets, so long as the Borrower or any such Subsidiary may obtain title to such assets at any time by optionally canceling such bonds or obligations, paying a nominal fee and terminating such financing transaction;
(n) Investments representing evidences of Indebtedness, securities or other property received from another Person by the Borrower or any of its Restricted Subsidiaries of any System or Systems in connection with any Asset Swapbankruptcy proceeding or other reorganization of such other Person or as a result of foreclosure, perfection or enforcement of any Lien or exchange for evidences of Indebtedness, securities or other property of such other Person held by the Borrower or any of its Subsidiaries; provided that any such securities or other property received by the Borrower or any of its Domestic Subsidiaries (iother than a Receivables Subsidiary or a Subsidiary of a Foreign Subsidiary) is pledged to the extent that the Borrower and its Restricted Subsidiaries give consideration Administrative Agent for the System or Systems acquired by them in connection with such Asset Swap that is in addition benefit of the Lenders pursuant to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma ComplianceSecurity Documents;
(fo) loans and advances to employees Management Investors in connection with the purchase by such Management Investors of Capital Stock of Holding of up to $25,000,000 outstanding at any one time; provided that such amount shall be reduced by the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding of Indebtedness in respect of Guarantee Obligations permitted by subsection 8.4(b);
(p) Investments in Golden Properties not to exceed $10,000,000 at any one time outstanding;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or aggregate an amount equal to the aggregate amount of dividends and other distributions received in cash by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted SubsidiaryGolden Equities from Golden Properties after the Closing Date; and
(hq) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are Investments not otherwise permitted by the preceding clauses of this subsection 6.68.8 not to exceed in the aggregate $100,000,000.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of of, or any assets constituting a business unit of, or make or maintain any other investment in (such advanceseach an Investment and, loanscollectively, extensions of credit, capital contributions, purchases and investments being herein called "Investments")) in, any Person, exceptexcept (subject to the final sentence of this Section 9.7) the following:
(a) extensions (i) loans or advances in respect of trade credit intercompany accounts attributable to the operation of the Company’s cash management system, (ii) loans or advances by the Company or any Restricted Subsidiary to the Company or any Restricted Subsidiary for working capital needs so long as such loans or advances constitute Indebtedness of the primary obligor that is not subordinate to any other Indebtedness of such obligor and, if evidenced by a promissory note, instrument or other writing and owed to the Company or any Subsidiary Guarantor, shall be pledged to the relevant Collateral Agent, and provided that the aggregate outstanding principal amount of all such loans, when aggregated with the aggregate amount of all Investments made by the Company and the Restricted Subsidiaries in its Subsidiaries pursuant to clause (b)(i) below, shall not exceed five percent (5%) of the Consolidated Total Assets, (iii) loans or advances to the Company or any Subsidiary Guarantor which are subordinated to the Finance Obligations on the terms and conditions set forth in Exhibit G and (iv) loans or advances by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(b) (i) Investments by the Company or a Subsidiary Guarantor in Domestic Subsidiaries of the Company that are not Credit Parties in an aggregate amount, when taken together with the aggregate amount of all outstanding loans and advances made pursuant to clause (a)(ii) above, not exceeding five percent (5%) of the Consolidated Total Assets; (ii) Investments by the Company or a Domestic Subsidiary in Foreign Subsidiaries of the Company in an aggregate amount not exceeding $100,000,000 for all such Investments made or committed to be made from and after the Effective Date plus an amount equal to any returns of capital or sales proceeds actually received in cash in respect of any such Investments (which amount shall not exceed the amount of such investment valued at cost at the time such investment was made); and (iii) Investments by any Subsidiary that is not a Credit Party in any other Subsidiary that is not a Credit Party;
(c) Investments by the Company or any of its Restricted Subsidiaries in Restricted Subsidiaries of the Company which are Credit Parties;
(d) any Domestic Subsidiary of the Company which is not a Credit Party may make Investments in the Company or any Domestic Subsidiary (by way of capital contribution or otherwise), and any Foreign Subsidiary of the Company may make Investments in the Company or any other Foreign Subsidiary (by way of capital contribution or otherwise);
(e) the Company or any Restricted Subsidiary may invest in, acquire and hold cash and Cash Equivalents;
(f) the Company or any of its Restricted Subsidiaries may make travel and entertainment advances and relocation loans in the ordinary course of business to officers, employees and agents of the Company or any such Restricted Subsidiary;
(g) the Company or any of its Restricted Subsidiaries may make payroll advances in the ordinary course of business;
(bh) Investments the Company or any of its Restricted Subsidiaries may acquire and hold receivables owing to it, if created or acquired in Cash Equivalents;
the ordinary course of business and payable or dischargeable in accordance with customary trade terms (cprovided that nothing in this clause (h) any Investment by shall prevent the Borrower Company or any Restricted Subsidiary (other than any Special Purpose Subsidiary) from offering such concessionary trade terms, or from receiving such Investments in Persons engaged connection with the bankruptcy or reorganization of their respective suppliers or customers or the settlement of disputes with such customers or suppliers arising in the telecommunications business ordinary course of business, as management deems reasonable in the circumstances);
(i) the Company and its Restricted Subsidiaries may make Investments in connection with asset sales permitted by Section 9.6 or businesses related theretoto which the Required Lenders consent;
(j) Investments, loans and advances of the Company or any Restricted Subsidiary existing on the Effective Date and described on Schedule 9.7 hereto;
(k) so long as no Default or Event of Default has occurred and is continuing or would exist after giving effect to such transaction, the Company and its Restricted Subsidiaries may make Permitted Acquisitions, Permitted Foreign Acquisitions and Investments in Permitted Joint Ventures, provided that (i) after giving effect thereto either (A) (1) Availability is at least 15% of the Line Cap at such Persontime and for the immediately preceding 60 days and (2) the Fixed Charge Coverage Ratio, on a pro forma basis, is at least 1.0 to 1.0 or (B) Availability is at least 20% of the Line Cap at such time and for the immediately preceding 60 days, 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 Sections 9.6 and 9.7 occurring after such period) as if such acquisition had occurred as of the first day of such period; (ii) the Secured Leverage Ratio of the Company and its Restricted Subsidiaries is less than 2.75 to 1.00 (calculated on a pro forma basis as of the last day of the fiscal quarter ending immediately preceding the effective date of such Permitted Acquisition or other Investment for which the relevant financial information has been delivered to the Lenders pursuant to Section 8.1 or 8.2, as applicable, giving effect to such Permitted Acquisition or Investment as if it shall be a Subsidiary, had been made on the first day of the Measurement Period ending on the last day of such fiscal quarter); (iii) if any Person shall become a Restricted Domestic Subsidiary of the Company by virtue of a Permitted Acquisition, then, unless (A) all or substantially all of the assets of such Person or assets shall be acquired with (I) proceeds of capital contributed are transferred to the Borrower expressly for Company (by merger of such purpose and/or (IIPerson with and into the Company or otherwise) funds within 90 days after the date such Person first become a Domestic Subsidiary of the Borrower Company, the Company shall cause such Person to become a Credit Party and shall cause each such Person to comply with the requirements set forth in Section 8.10, and (iv) no Permitted Foreign Acquisition or Permitted Joint Venture may be made of, with or in consideration of any assets which before or after giving effect to such amount thatInvestment are (or are required to be) Collateral other than as required under Section 8.10;
(l) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(m) additional Investments, provided that both immediately before such Investment is made and immediately after giving effect thereto, the Special Payment Condition Conditions shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstanding;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; and
(hn) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are Investments permitted by subsection 6.6.under Section 9.6(i) ; and
Appears in 1 contract
Samples: Credit Agreement (KLX Inc.)
Limitation on Investments, Loans and Advances. Make Except as required to consummate a sale of the Australian Assets (the terms of which comply with SECTION 6.7 and are otherwise acceptable to the Administrative Agent), make, and shall not permit any Subsidiary to make, any advance, loan, extension of credit (excluding Guarantee Obligations but including any payment by a guarantor thereunder) or capital contribution to, or purchase any stockCapital Stock, bonds, notes, debentures or other securities of, or purchase all or a material part of or any assets constituting a business unit or line of business of (or all or substantially all the assets of), or make any other investment in in, any Person (such advancesany of the foregoing, loans, extensions of credit, capital contributions, purchases and investments being herein called an "InvestmentsINVESTMENT"), any Person, except:
(a) extensions Investments of trade credit the Borrower or any Subsidiary existing on the date hereof in any Subsidiary (and the ordinary course of businessBorrower or any Wholly-Owned Subsidiary may acquire such Investment in any Subsidiary);
(b) Investments in the Borrower and its Subsidiaries may invest in, acquire and hold Cash Equivalents;
(c) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance[Intentionally Omitted];
(d) any Investment by Investments of the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to existing on the date on which hereof and the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner receipt of any assets acquired additional securities constituting payments in connection with kind on such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Complianceexisting Investments;
(e) any Investment Investments in obligations arising from the acquisition by the Borrower out of bankruptcy of customers and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliancesuppliers;
(f) loans in connection with cash management and advances tax efficient financing of Aquila and its Subsidiaries in the ordinary course of business consistent with past practice, Investments by Aquila or any Subsidiary of Aquila in Aquila or any Subsidiary of Aquila (other than UCS Holdings LLC or any of its Subsidiaries), PROVIDED that the proceeds thereof shall not be used to employees finance any capital expenditure; and PROVIDED, FURTHER, that so long as the Pledged Equity Interest (as such term is defined in the Specified Company Pledge Agreement) remains subject to the Lien of the Borrower Specified Company Pledge Agreement, (y) in the case of any Investment made by any Specified Entity in Aquila or any Subsidiary of Aquila which is not a Specified Entity, such Investment shall not exceed the aggregate amount of Investments made after the date hereof in Specified Entities pursuant to this subparagraph by Aquila or a Subsidiary of Aquila which is not an Specified Entity; and its Restricted Subsidiaries in an aggregate principal amount outstanding (z) such Investments (taken as a whole) shall not to exceed $10,000,000 at any one time outstanding;materially adversely affect the collateral value of Specified Entities taken as a whole (or materially adversely effect the rights and remedies of the Collateral Agent with respect thereto); and
(g) other Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in of the Borrower or by any Restricted Subsidiary (other after the date hereof of not more than any Special Purpose Subsidiary) $1,000,000 in any other Restricted Subsidiary; and
(h) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6the aggregate.
Appears in 1 contract
Samples: Credit Agreement (Aquila Inc)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment (except as provided in subsection 8.12) in (such advancesincluding, loanswithout limitation, extensions any acquisition of creditall or any substantial portion of the assets, capital contributionsand any acquisition of a business or a product line, purchases and investments being herein called "Investments"of other companies, other than the acquisition of inventory in the ordinary course of business), any Person, except:
(a) extensions the Company may make loans or advances to any Subsidiary, and any Subsidiary may make loans or advances to the Company or any other Subsidiary, to the extent in each case the Indebtedness created thereby is permitted by paragraph (c) of trade credit subsection 8.1;
(b) any Subsidiary may make investments in the Company (by way of capital contribution or otherwise) and (ii) the Company and any Subsidiary may make investments in, or create, any wholly-owned Domestic Subsidiary (by way of capital contribution or otherwise) or make investments permitted by subsection 8.5(b), provided that, in any such case, (x) if stock is issued or otherwise acquired in connection with such investment, or if the stock of such Subsidiary was not previously pledged to the Administrative Agent, such stock is pledged to the Administrative Agent for the benefit of the Lenders so that 100% of the Capital Stock of such Subsidiary is pledged to the Administrative Agent and (y) such Subsidiary guarantees the obligations of the Company under the Notes and this Agreement, and grants liens or security interests in favor of the Administrative Agent, for the benefit of the Lenders, on substantially all of its assets to secure such guarantee, pursuant to a guarantee, a security agreement and other documentation reasonably satisfactory to the Administrative Agent;
(c) the Company and its Subsidiaries may invest in, acquire and hold Cash Equivalents;
(d) the Company or any of its Subsidiaries may make payroll advances in the ordinary course of business;
(be) Investments in Cash Equivalents;
(c) any Investment by the Borrower Company or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged of its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the telecommunications ordinary course of business and payable or businesses related theretodischargeable in accordance with customary trade terms, (provided that nothing in this clause (ie) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to prevent the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower Company or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of from offering such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000concessionary trade terms, or (y) thereafter, 5% of then Total Capitalization; provided that (i) from receiving such Person, or the Person which shall become the owner of any assets acquired investments in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person the bankruptcy or assets shall be acquired with (I) proceeds reorganization of capital contributed to their respective suppliers or customers or the Borrower expressly for such purpose and/or (II) funds settlement of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection disputes with such Asset Swap that is customers or suppliers arising in addition to the System or Systems transferred by them ordinary course of business, as management deems reasonable in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliancecircumstances);
(f) the Company or any of its Subsidiaries may make relocation and other loans to officers and employees of the Company or any such Subsidiary, provided that the aggregate principal amount of all such loans and advances outstanding at any one time, together with the guarantees of such loans and advances made pursuant to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding subsection 8.3(e), shall not to exceed $10,000,000 4,000,000 at any one time outstanding;
(g) Investments the Company may make loans to employees of the Company and its Subsidiaries the proceeds of which are used by such employees to purchase stock of Holdings, provided that the aggregate principal amount of all such loans shall not exceed, together with any guarantees of loans made pursuant to subsection 8.3(i), at any one time outstanding $8,000,000;
(h) the Company and its Subsidiaries may make acquisitions of companies engaged primarily in businesses similar to the businesses in which the Company and its Subsidiaries are engaged to the extent that the amount expended to make such acquisitions is permitted pursuant to subsection 8.9(b);
(i) the Company may make loans to employees of the Company and its Subsidiaries, the proceeds of which are used by such employees for travel and other ordinary expenses for which advances to employees are generally made in an aggregate principal amount not to exceed when added to the amount of guarantees made by the Borrower in its Restricted Subsidiaries and Investments by Company pursuant to subsection 8.3(j), at any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiaryone time outstanding $1,000,000; and
(hj) promissory notes the Company or any of its Subsidiaries may make investments in, or loans or investments to, joint ventures or other Persons engaged primarily in one or more businesses in which the Company and its Subsidiaries are engaged or directly related thereto in an aggregate amount not to exceed $2,000,000 plus the sum of any cash amounts dividended or distributed to the Company or any Subsidiary of the Company after the date hereof by such joint venture or other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6Person.
Appears in 1 contract
Samples: Credit Agreement (CSK Auto Corp)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in Cash Equivalentscash equivalents, including any such investment that may be readily sold or otherwise liquidated in any Fund for which any Subsidiary or other Management Company provides management, advisory or administrative services and which principally invests in cash equivalents;
(c) any Investment by the Borrower investment in or loan or advance to a Management Company or a Subsidiary or in any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related theretoPerson which, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investmentinvestment, the Borrower is in Pro Forma Compliancewill become a Subsidiary or a Management Company, if, after giving effect to such investment, no Default or Event of Default shall have occurred and be continuing;
(d) any Investment by loans to officers of the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) its Subsidiaries listed on Schedule 8.10 in Persons aggregate principal amounts outstanding not engaged in to exceed the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly respective amounts set forth for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Complianceofficers on said schedule;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower or its Subsidiaries for travel, entertainment and its Restricted Subsidiaries relocation expenses in the ordinary course of business in an aggregate principal amount outstanding for the Borrower and its Subsidiaries not to exceed $10,000,000 150,000 at any one time outstanding (other than as permitted in subsection 7.10(f)) and (ii) in the case of a Subsidiary of the Borrower, loans and advances to employees for travel, entertainment and relocation expenses in the ordinary course of business to the extent that such loans and advances are made out of that portion of its revenues designated as Operating Cash Flow (and not Free Cash Flow) under the relevant Revenue Sharing Agreement;
(f) to the extent made out of the portion of the revenues of a Subsidiary of the Borrower which is designated as Operating Cash Flow (and not Free Cash Flow) under the relevant Revenue Sharing Agreements; and
(g) investments in any Fund or financial product for which any Subsidiary provides management, advisory or administrative services in an aggregate amount not to exceed $2,000,000 at any one time outstanding;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; and
(h) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or incur any Guarantee Obligation on behalf or for the benefit of, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment (including by the issuance of letters of credit) in (such advancescollectively, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments"), any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) any Investment by loans and advances to officers and employees of the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged for travel, entertainment and relocation expenses in the telecommunications ordinary course of business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by for the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 500,000 (and $1,000,000 after the occurrence of the Shell Transaction Completion Date) at any one time outstanding;
(gd) investments, loans or advances, the material details of which have been set forth on Schedule 8.8;
(e) so long as no Default or Event of Default shall have occurred and be continuing, Investments by the Borrower in its Restricted Subsidiaries any Wholly-Owned Subsidiary which is a Guarantor and Investments by any Restricted Wholly-Owned Subsidiary (other than any Special Purpose Subsidiary) which is a Guarantor in the Borrower or in other Wholly-Owned Subsidiaries which are Guarantors;
(i) Investments constituting Permitted Business Investments constituting Dispositions of Oil and Gas Properties which are not Proved Reserves in connection with the farm-out of such Oil and Gas Properties pursuant to farm-out agreements entered into in the ordinary course of business of the Borrower and its Subsidiaries, and (ii) other Investments constituting Permitted Business Investments made or entered into in the ordinary course of the Oil and Gas Business in an amount (valued at the time of making thereof) not to exceed, in the aggregate, $2,500,000 (and $5,000,000 after the occurrence of the Shell Transaction Completion Date) during any fiscal year of the Borrower;
(g) Investments constituting Permitted Business Acquisitions made or entered into in the ordinary course of the Oil and Gas Business; PROVIDED that with respect to a Permitted Business Acquisition which is not an acquisition funded entirely with the common stock of the Borrower, after giving effect to the consummation of the transactions contemplated by any Restricted Subsidiary such Permitted Business Acquisition and the Loans to be made and the Letters of Credit to be issued hereunder in connection therewith, the sum of (other than any Special Purpose Subsidiaryi) the cash and Cash Equivalents then held by the Borrower and (ii) an amount equal to the difference between (A) the aggregate Revolving Credit Commitments (or, if less, the Borrowing Base) in effect at such time and (B) the Aggregate Revolving Credit Exposure of all the Lenders at such time, equals at least $20,000,000 (and $10,000,000 after the occurrence of the Shell Transaction Completion Date);
(h) obligations (in each case not outstanding for more than 90 days) owed by or to Affiliates under operating agreements relating to Oil and Gas Properties in an aggregate amount not to exceed $5,000,000 (and $10,000,000 after the occurrence of the Shell Transaction Completion Date) at any other Restricted time;
(i) transactions expressly permitted under (i) subsection 8.2 (PROVIDED, that no loans may be made by the Borrower pursuant to subsection 8.2(e) at any time when a Default or Event of Default shall have occurred and be continuing), (ii) subsection 8.3, (iii) subsection 8.4, (iv) subsection 8.5 or (v) subsection 8.16, as applicable;
(j) Investments in joint ventures made pursuant to exploration and development activity in the ordinary course of business of the Borrower and its Subsidiaries to the extent that the Borrower's or a Subsidiary's Investment therein is limited to the contribution by the Borrower or such Subsidiary of (i) Oil and Gas Properties which are not Proved Reserves and (ii) seismic data to the extent that an interest is retained in such data by the Borrower or its Subsidiaries;
(k) Investments made in LOPI pursuant to the Merger Agreement and assets purchased pursuant to the Asset Purchase Agreement; and
(hl) promissory notes Investments not otherwise permitted hereunder in an amount at any time not in excess of $1,000,000 (and other deferred payment obligations that constitute proceeds $2,500,000 after the occurrence of Asset Sales that are permitted by subsection 6.6the Shell Transaction Completion Date).
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of of, or any assets constituting a business unit of, or make or maintain any other investment in (such advanceseach an “Investment” and, loanscollectively, extensions of credit, capital contributions, purchases and investments being herein called "“Investments")”) in, any Person, exceptexcept (subject to the final sentence of this Section 9.7) the following:
(a) extensions (i) loans or advances in respect of trade credit intercompany accounts attributable to the operation of the Company’s cash management system, (ii) loans or advances by the Company or any Restricted Subsidiary to the Company or any Restricted Subsidiary for working capital needs so long as such loans or advances constitute Indebtedness of the primary obligor that is not subordinate to any other Indebtedness of such obligor and, if evidenced by a promissory note, instrument or other writing and owed to the Company or any Subsidiary Guarantor, shall be pledged to the Collateral Agent, and provided that the aggregate outstanding principal amount of all such loans, when aggregated with the aggregate amount of all Investments made by the Company and the Restricted Subsidiaries in its Subsidiaries pursuant to paragraph (b)(i) below, shall not exceed five percent (5%) of the Consolidated Total Assets, (iii) loans or advances to the Company or any Subsidiary Guarantor which are subordinated to the Finance Obligations on the terms and conditions set forth in Exhibit F and (iv) loans or advances by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(b) (i) Investments by the Company or a Subsidiary Guarantor in Domestic Subsidiaries of the Company that are not Credit Parties in an aggregate amount, when taken together with the aggregate amount of all outstanding loans and advances made pursuant to paragraph (a)(ii) above, not exceeding five percent (5%) of the Consolidated Total Assets; (ii) Investments by the Company or a Domestic Subsidiary in Foreign Subsidiaries of the Company in an aggregate amount not exceeding $2,500,000 for all such Investments made or committed to be made from and after the Execution Date plus an amount equal to any returns of capital or sales proceeds actually received in cash in respect of any such Investments (which amount shall not exceed the amount of such investment valued at cost at the time such investment was made); and (iii) Investments by any Subsidiary that is not a Credit Party in any other Subsidiary that is not a Credit Party;
(c) Investments by the Company or any of its Restricted Subsidiaries in Restricted Subsidiaries of the Company which are Credit Parties;
(d) any Domestic Subsidiary of the Company which is not a Credit Party may make Investments in the Company or any Domestic Subsidiary (by way of capital contribution or otherwise), and any Foreign Subsidiary of the Company may make Investments in the Company or any other Foreign Subsidiary (by way of capital contribution or otherwise);
(e) the Company or any Restricted Subsidiary may invest in, acquire and hold cash and Cash Equivalents, subject to Control Agreements in favor of the Collateral Agent for the benefit of the Lenders or otherwise subject to a perfected security interest in favor of the Collateral Agent for the benefit of the Lenders;
(f) the Company or any of its Restricted Subsidiaries may make travel and entertainment advances and relocation loans in the ordinary course of business to officers, employees and agents of the Company or any such Restricted Subsidiary, in an aggregate outstanding amount not exceeding $250,000 at any time for all such advances and relocation loans;
(g) the Company or any of its Restricted Subsidiaries may make payroll advances in the ordinary course of business;
(bh) Investments the Company or any of its Restricted Subsidiaries may acquire and hold receivables owing to it, if created or acquired in Cash Equivalents;
the ordinary course of business and payable or dischargeable in accordance with customary trade terms (cprovided that nothing in this paragraph (h) any Investment by shall prevent the Borrower Company or any Restricted Subsidiary (other than any Special Purpose Subsidiary) from offering such concessionary trade terms, or from receiving such Investments in Persons engaged connection with the bankruptcy or reorganization of their respective suppliers or customers or the settlement of disputes with such customers or suppliers arising in the telecommunications business ordinary course of business, as management deems reasonable in the circumstances);
(i) the Company and its Restricted Subsidiaries may hold Investments received as considerations in connection with asset sales permitted by Section 9.6 or businesses related theretoto which the Required Lenders consent;
(j) Investments, loans and advances of the Company or any Restricted Subsidiary existing on the Execution Date and described on Schedule 9.7 hereto;
(k) so long as the Payment Conditions are satisfied immediately before any transaction under this paragraph (k) and after giving effect to such transaction, the Company and its Restricted Subsidiaries may make Permitted Acquisitions, Permitted Foreign Acquisitions and Investments in Permitted Joint Ventures, provided that (i) such Person, if it shall be a Subsidiary, any Person shall become a Restricted Domestic Subsidiary of the Company by virtue of a Permitted Acquisition, then, unless (A) all or substantially all of the assets of such Person or assets shall be acquired with (I) proceeds of capital contributed are transferred to the Borrower expressly for Company (by merger of such purpose and/or Person with and into the Company or otherwise) within ninety (II90) funds days after the date such Person first become a Domestic Subsidiary of the Borrower Company, the Company shall cause such Person to become a Credit Party and shall cause each such Person to comply with the requirements set forth in Section 8.10, and (ii) no Permitted Foreign Acquisition or Permitted Joint Venture may be made of, with or in consideration of any assets which before or after giving effect to such amount thatInvestment are (or are required to be) Collateral other than as required under Section 8.10;
(l) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business; and
(m) additional Investments (other than Permitted Acquisitions, Permitted Foreign Acquisitions and Investments in Permitted Joint Ventures), provided that both immediately before such Investment is made and immediately after giving effect thereto, the Special Payment Condition Conditions shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstanding;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; and
(h) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6.
Appears in 1 contract
Samples: Credit Agreement (KLX Energy Services Holdings, Inc.)
Limitation on Investments, Loans and Advances. Make or allow to remain outstanding any advance, loan, extension Investment (whether such investment shall be of credit or capital contribution to, or purchase any the character of investment in shares of stock, bonds, notes, debentures evidences of indebtedness or other securities of or otherwise) in, or any assets constituting a business unit of, loans or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")advances to, any Person, exceptPerson other than:
(a) extensions of trade credit Permitted Investments;
(b) [Reserved];
(c) sales on open account in the ordinary course of business;
(bd) intercompany loans or intercompany Investments made by any Credit Party (excluding Foreign Subsidiaries) to or in Cash Equivalents;
(c) any Investment by the Borrower Borrower, Guarantor or any Restricted Subsidiary (other than any Special Purpose Domestic Subsidiary) in Persons engaged ; provided that, in the telecommunications business case of any intercompany loans or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the intercompany Investments made by any Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower Guarantor or any Restricted Subsidiary (other than any Special Purpose Domestic Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does from time to time outstanding in respect thereof shall not exceed (x) at any time prior to the date on which the Special Payment Condition $200,000,000; and provided, further, that in each case, no Default or Event of Default shall have occurred, $50,000,000, occurred and be continuing at the time of making 66 such intercompany loan or (y) thereafter, 5% of then Total Capitalization; provided that (i) intercompany Investment or result from such Person, intercompany loan or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such intercompany Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliancebeing made;
(e) intercompany loans or intercompany Investments made by Borrower or any Guarantor to or in any Foreign Subsidiary; provided that, the aggregate amount from time to time outstanding in respect of such loans and Advances shall not exceed $200,000,000; and provided, further, that no Default or Event of Default shall have occurred and be continuing at the time of making such intercompany loan or intercompany Investment arising or result from the acquisition by the Borrower and its Restricted Subsidiaries of any System such intercompany loan or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an intercompany Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliancebeing made;
(f) intercompany loans or intercompany Investments made by any Foreign Subsidiary to or in any Guarantor or Borrower; provided that, the aggregate amount from time to time outstanding in respect thereof shall not exceed the sum of $75,000,000 plus all other amounts that may be advanced by any Foreign Subsidiary, exceeding the amount that the Foreign Subsidiary is required to maintain under local law to be considered solvent, taking into account only assets located in the Subsidiary's jurisdiction of organization); and provided, further, that in each case, no Default or Event of Default shall have occurred and be continuing at the time of making such intercompany loan or intercompany Investment or result from such intercompany loan or intercompany Investment being made;
(g) intercompany loans or intercompany Investments made by any Non-Guarantor Subsidiary to or in any other Non-Guarantor Subsidiary;
(h) Investments in respect of Hedging Transactions provided that such transaction is entered into for risk management purposes and not for speculative purposes;
(i) loans and advances to employees employees, officers and directors of any Credit Party for moving, entertainment, travel and other similar expenses in the Borrower ordinary course of business in the aggregate at any time outstanding;
(j) Permitted Acquisitions and its Restricted Subsidiaries Investments in any Person acquired pursuant to a Permitted Acquisition;
(k) Investments constituting deposits made in connection with the purchase of goods or services in the ordinary course of business in an aggregate principal amount outstanding for such deposits not to exceed $10,000,000 25,000,000 at any one time outstanding;
(gl) other Investments by not described above provided that both at the Borrower time of and immediately after giving effect to any such Investment (i) no Default or Event of Default shall have occurred and be continuing or shall result 67 from the making of such Investment and (ii) the aggregate amount of all such Investments shall not exceed $50,000,000 at any time outstanding. In valuing any Investments for the purpose of applying the limitations set forth in its Restricted Subsidiaries and Investments by this Section 8.7 (except as otherwise expressly provided herein), such Investment shall be taken at the original cost thereof, without allowance for any Restricted Subsidiary (other than subsequent write-offs or appreciation or depreciation, but less any Special Purpose Subsidiary) in the Borrower amount repaid or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; and
(h) promissory notes and other deferred payment obligations that constitute proceeds recovered on account of Asset Sales that are permitted by subsection 6.6capital or principal.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting all or a material part of a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in Cash Equivalents;
(c) any Investment Guarantee Obligations permitted by Section 7.2;
(d) the Acquisition;
(e) investments made by the Borrower or any Restricted Subsidiary of its Subsidiaries with the proceeds of any Reinvestment Deferred Amount resulting from a Recovery Event;
(other than f) investments by Holdings, the Borrower or any Special Purpose Subsidiary) in Persons engaged of its Subsidiaries in the telecommunications business Borrower or businesses related theretoa Wholly Owned Subsidiary Guarantor;
(g) so long as no Default or Event of Default shall have occurred and be continuing, the Borrower and any Subsidiary may make investments in or loans to, or create, any Specified Entity (by way of capital contribution or otherwise), provided that (ix) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds the requirements of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be Section 6.9 are satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (By) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of all investments in or loans to such Investments then held by Specified Entities since the Borrower and its Restricted Subsidiaries does Original Closing Date shall not exceed (x) $2,000,000 minus the aggregate principal amount of any Indebtedness of any Specified Entity at any such time prior outstanding in accordance with Section 7.2(h) and (z) no such investments shall be made in and no such loans shall be made to (other than loans to Xxxxx Services Company in an aggregate principal amount not to exceed $275,000) any Joint Ventures subsequent to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma ComplianceClosing Date;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(fh) loans and advances to employees or directors of the Borrower made pursuant to a form of promissory note provided to the Administrative Agent prior to the date hereof (with any such changes as are reasonably satisfactory to the Administrative Agent) and its Restricted Subsidiaries made solely to fund purchases of Capital Stock of Holdings to the extent the proceeds therefrom are concurrently received by Holdings and contributed to the Borrower, in an aggregate principal amount outstanding not to exceed $10,000,000 500,000 at any one time outstanding;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; and
(hi) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are in addition to investments otherwise expressly permitted by subsection 6.6this Section 7.8, so long as no Default or Event of Default shall have occurred and be continuing, investments by the Borrower or any of its Subsidiaries in an aggregate amount (valued at cost) not to exceed $2,000,000 since the Original Closing Date.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advancesincluding, loanswithout limitation, extensions any acquisition of creditall or any substantial portion of the assets, capital contributionsand any acquisition of a business or a product line, purchases and investments being herein called of other companies, other than the acquisition of inventory in the ordinary course of business) (each, an "InvestmentsInvestment"), any Person, except:
(ai) extensions the Company may make loans or advances to any Subsidiary, and any Subsidiary may make loans or advances to the Company or any other Subsidiary, to the extent in each case the Indebtedness created thereby is permitted by Section 6.01(c) and (ii) the Company may make loans or advances to Holdings to allow Holdings to consummate the Refinancing;
(i) any Subsidiary may make Investments in the Company (by way of trade credit capital contribution or otherwise) and (ii) the Company and any Subsidiary may make Investments in, or create, any Wholly-Owned Domestic Subsidiary (by way of capital contribution or otherwise) or make Investments permitted by Section 6.05(b), provided that, in any such case, (x) if stock is issued or otherwise acquired in connection with such Investment, or if the stock of such Subsidiary was not previously pledged to the Administrative Agent, such stock is pledged to the Administrative Agent for the benefit of the Lenders so that 100% of the Capital Stock of such Subsidiary is pledged to the Administrative Agent and (y) such Subsidiary guarantees the obligations of the Company under the Notes and this Agreement, and grants liens or security interests in favor of the Administrative Agent, for the benefit of the Lenders, on substantially all of its assets to secure such guarantee, pursuant to a guarantee, a security agreement and other documentation reasonably satisfactory to the Administrative Agent;
(c) the Company and its Subsidiaries may make Investments in, acquire and hold Cash Equivalents and Investment Grade Securities;
(d) the Company or any of its Subsidiaries may make payroll advances in the ordinary course of business;
(be) Investments in Cash Equivalents;
(c) any Investment by the Borrower Company or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged of its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the telecommunications ordinary course of business and payable or businesses related thereto, dischargeable in accordance with customary trade terms (provided that nothing in this clause (ie) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to prevent the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower Company or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business from offering such concessionary trade terms, or businesses related thereto if, after giving effect thereto, the aggregate amount of from receiving such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person the bankruptcy or assets shall be acquired with (I) proceeds reorganization of capital contributed to their respective suppliers or customers or the Borrower expressly for such purpose and/or (II) funds settlement of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection disputes with such Asset Swap that is customers or suppliers arising in addition to the System or Systems transferred by them ordinary course of business, as management deems reasonable in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliancecircumstances);
(f) the Company or any of its Subsidiaries may make relocation and other loans to officers and employees of the Company or any such Subsidiary (or to Holdings so that it will make such loans), provided that the aggregate principal amount of all such loans and advances outstanding at any one time, together with the guarantees of such loans and advances made pursuant to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding Section 6.03(e), shall not to exceed $10,000,000 4,000,000 at any one time outstanding;
(g) the Company may make loans to employees of the Company and its Subsidiaries (or to Holdings so that it will make such Loans) the proceeds of which are used by such employees to purchase stock of Holdings, provided that the aggregate principal amount of all such loans shall not exceed, together with any guarantees of loans made pursuant to Section 6.03(i), at any one time outstanding $8,000,000;
(h) the Company and its Subsidiaries may make additional Investments; provided that, immediately prior to and after giving pro forma effect to any such acquisition and the financing thereof, no Default or Event of Default has occurred and is continuing or would result therefrom and the aggregate amount of all Investments made in accordance with this clause during the term of this Agreement does not exceed $75,000,000;
(i) the Company may make loans to employees of the Company and its Subsidiaries (or to Holdings so that it will make such Loans), the proceeds of which are used by such employees for travel and other ordinary expenses for which advances to employees are generally made in an aggregate principal amount not to exceed, when added to the amount of guarantees made by the Borrower Company pursuant to Section 6.03(j), at any one time outstanding $1,000,000;
(j) the Company or any of its Subsidiaries may make Investments in, or loans or Investments to, joint ventures or other Persons engaged primarily in one or more businesses in which the Company and its Restricted Subsidiaries are engaged or directly related thereto in an aggregate amount not to exceed $5,000,000 plus the sum of (A) any cash amounts dividended or distributed to the Company or any Subsidiary of the Company after the date hereof by such joint venture or other Person and Investments by (B) any Restricted Subsidiary (other than any Special Purpose Subsidiary) amounts from sales or distributions permitted in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted SubsidiarySection 6.05(i); and
(hk) promissory notes the Company may acquire Capital Stock of Holdings pursuant to the Call Agreement or from Holdings for the purpose of delivering such Capital Stock to the holders of the Exchangeable Notes pursuant to the terms of the Exchangeable Note Indenture and other deferred may make any payment obligations required in connection with a termination of the Call Agreement, the Warrant Agreement or any Swap Agreement if the Company determines that constitute proceeds it is in its best interest to do so as a result of Asset Sales that are permitted by subsection 6.6.the consummation of the Refinancing..
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting all or a material part of a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any PersonPerson (collectively, “Investments”), except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) any Investment Guarantee Obligations permitted by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma ComplianceSection 7.2;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees or directors of the Parent Borrower or its Subsidiaries in the ordinary course of business (including for travel, entertainment and relocation expenses) in an aggregate amount for the Parent Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 5,000,000 at any one time outstanding; provided, however that this provision shall not limit key man insurance;
(e) the investment by the Parent Borrower or its Subsidiaries of accounts receivable or related rights and assets pursuant to a Receivables Transfer Program into a Subsidiary;
(f) Investments made by the Parent Borrower or any of its Subsidiaries with the proceeds of any Reinvestment Deferred Amount;
(g) Investments by the Parent Borrower or any of its Subsidiaries in the Parent Borrower or any Subsidiary Guarantor in the ordinary course of business;
(h) Investments (including debt obligations and Capital Stock) by the Parent Borrower or its Restricted Subsidiaries received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;
(i) so long as no Default or Event of Default shall have occurred and be continuing, the Parent Borrower or any Subsidiary may make advances, loans or extensions of credit to any Foreign Subsidiary or Foreign Subsidiary Holdco; provided that the Indebtedness of such Foreign Subsidiary or Foreign Subsidiary Holdco is permitted under Section 7.2(k);
(j) in addition to Investments otherwise permitted by this Section 7.8, so long as no Default or Event of Default shall have occurred and be continuing, Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Parent Borrower or any of its Subsidiaries; provided that (x) to the extent such Investments consist of equity investments (by any Restricted Subsidiary (other than any Special Purpose Subsidiaryway of capital contribution or otherwise) in any Subsidiary, the requirements of Section 6.9 are satisfied and (y) the Consolidated Senior Secured Leverage Ratio of the Parent Borrower and its Subsidiaries, computed on a pro forma basis (giving effect to such Investments and any Indebtedness incurred in connection therewith) as at the last day of the most recently ended fiscal quarter of the Parent Borrower and its Subsidiaries for which financial statements are available, is no greater than the Consolidated Senior Secured Leverage Ratio that is 0.25x lower than the Consolidated Senior Secured Leverage Ratio in effect for such fiscal quarter under Section 7.1(a);
(k) other Restricted SubsidiaryInvestments constituting Permitted Business Acquisitions;
(l) in addition to Investments otherwise permitted by this Section 7.8, so long as no Default or Event of Default shall have occurred and be continuing, Investments by the Parent Borrower or any of its Subsidiaries in an aggregate amount (valued at cost) not to exceed the greater of (x) $75,000,000 and (y) 3.5% of Consolidated Total Assets (measured on the date of the making of such Investment) at any time outstanding; and
(hm) promissory notes to the extent constituting Investments, any Permitted Bond Hedge Transaction or any Permitted Warrant Transaction. For purposes of this Agreement, the amount of any Investment shall be the original cost of such Investment plus the cost of all additions thereto, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect to such Investment, but giving effect to any repayments of principal in the case of Investments in the form of loans and other deferred payment obligations that constitute proceeds any return of Asset Sales that are permitted by subsection 6.6capital or return on Investment in the case of equity Investments (whether as a distribution, dividend, redemption or sale, but not in excess of the amount of the initial Investment).
Appears in 1 contract
Samples: Credit Agreement (Conmed Corp)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in in, any Person (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "InvestmentsINVESTMENTS"), any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(ci) any Investment by the Borrower or any Restricted Subsidiary Investments (other than Permitted Acquisitions) by the US Borrower and its Subsidiaries in any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount thatCredit Parties, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made including any new Subsidiary which becomes a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary Credit Party and (ii) immediately prior and after giving effect Investments in Foreign Subsidiaries of the US Borrower that are not Credit Parties not to such Investment, exceed the Borrower is sum of (x) $6,500,000 in Pro Forma Compliancethe aggregate plus (y) intercompany indebtedness permitted by subsection 8.2(b);
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances by the US Borrower or its Subsidiaries to their respective directors, officers and employees (a) which are in the form of notes payable by such directors, officers and employees to the US Borrower or its Subsidiaries and used to finance the purchase of Capital Stock of the US Borrower and or its Restricted Subsidiaries or (b) in an aggregate principal amount outstanding not to exceed exceeding the Equivalent Amount of $10,000,000 1,300,000 at any one time outstanding;
(ge) loans, advances or Investments in existence on the Closing Date and listed on Schedule 8.9, and extensions, renewals, modifications or restatements or replacements thereof, PROVIDED that no such extension, renewal, modification or restatement shall (i) increase the amount of the original loan, advance or investment, or (ii) adversely affect the interests of the Secured Parties with respect to such original loan, advance or investment or the interests of the Specified Lenders under this Agreement or any other Loan Document in any material respect;
(f) Investments permitted by the Borrower in its Restricted Subsidiaries subsection 8.2(b), subsection 8.4, subsection 8.7 and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; andsubsection 8.8;
(hg) promissory notes and other deferred payment obligations that constitute proceeds similar non-cash consideration received in the ordinary course of Asset Sales that are business by the Subsidiaries of the US Borrower in connection with the dispositions permitted by subsection 6.68.6;
(h) Investments in Interest Rate Agreements;
(i) Investments (including debt obligations and Capital Stock) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;
(j) in addition to the foregoing, Investments by Subsidiaries of the US Borrower in an aggregate amount not exceeding the Equivalent Amount of $13,000,000 (at cost, without regard to any write down or write up thereof) at any one time outstanding;
(k) so long as after giving effect thereto no Default or Event of Default shall have occurred and be continuing, Investments after the Closing Date by Subsidiaries of the US Borrower resulting from Permitted Acquisitions in an aggregate amount which shall include Indebtedness permitted by subsections 8.2(l) and (q) not to exceed the sum of (A) the amount of $13,000,000 per annum, (B) the amount of common stock of the US Borrower issued subsequent to the Closing Date in connection with Permitted Acquisitions, (C) the amount of the Indebtedness referred to in subsection 8.2(l)(A)(ii) and (D) the then unused Permitted Expenditure Amount, PROVIDED, that (i) the Administrative Agent shall have received as soon as practicable, (I) such opinions (including with respect to environmental matters), certificates and copies of agreements (including any Permitted Acquisition Documents) as it shall reasonably request and (II) a certificate of a Responsible Officer of the US Borrower after giving effect to such Permitted Acquisition showing the aggregate purchase price (including the assumption of any Indebtedness) for Permitted Acquisitions made by the US Borrower and its Subsidiaries since the Closing Date, (ii) such actions as may be required or reasonably requested to ensure that the Specified Agent, for the ratable benefit of the Specified Lenders, has a perfected first priority security interest or first ranking hypothec (in each case, to the extent permitted by any assumed Indebtedness) in any assets required to be secured pursuant to subsections 7.9 and 7.11 or any other Loan Document, subject to Liens permitted by subsection 8.3, shall have been taken and (iii) (I) on a pro forma basis for the period of four consecutive fiscal quarters most recently ended (assuming the consummation of such Permitted Acquisition and the incurrence or assumption of any Indebtedness in connection therewith occurred on the first day of such period of four consecutive fiscal quarters and taking into account for such pro forma computation only, the reasonable pro forma cost savings associated with such Permitted Acquisition which are reasonably satisfactory to the Administrative Agent), the US Borrower shall be in compliance with the covenants contained in subsection 8.1 and (II) the Administrative Agent shall have received calculations in reasonable detail reasonably satisfactory to it showing compliance with the requirements of this clause (iii) certified by a Responsible Officer of the US Borrower;
(l) Investments which were owned by the target entity of a Permitted Acquisition and which were acquired by the US Borrower and its Subsidiaries in connection with such Permitted Acquisition and were not made or created in contemplation of such Permitted Acquisition; and
(m) the Xxxxxx Acquisition pursuant to the terms of the Acquisition Agreement.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting all or a material part of a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any PersonPerson (collectively, “Investments”), except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) any Investment Guarantee Obligations permitted by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma ComplianceSection 7.2;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees or directors of the Parent Borrower or its Subsidiaries in the ordinary course of business (including for travel, entertainment and relocation expenses) in an aggregate amount for the Parent Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 5,000,000 at any one time outstanding, provided, however that this provision shall not limit key man insurance;
(e) the investment by the Parent Borrower or its Subsidiaries of accounts receivable or related rights and assets pursuant to a Receivables Transfer Program into a Subsidiary;
(f) [Reserved];
(g) Investments by the Parent Borrower or any of its Subsidiaries in the Parent Borrower or any Subsidiary Guarantor in the ordinary course of business;
(h) Investments (including debt obligations and Capital Stock) by the Parent Borrower or its Restricted Subsidiaries received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;
(i) so long as no Default or Event of Default shall have occurred and be continuing, the Parent Borrower or any Subsidiary may make advances, loans or extensions of credit to any Foreign Subsidiary or Foreign Subsidiary Holdco, provided that the Indebtedness of such Foreign Subsidiary or Foreign Subsidiary Holdco is permitted under Section 7.2(k);
(j) in addition to Investments otherwise permitted by this Section 7.8, so long as no Default or Event of Default shall have occurred and be continuing, Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Parent Borrower or any of its Subsidiaries; provided that (x) to the extent such Investments consist of equity investments (by any Restricted Subsidiary (other than any Special Purpose Subsidiaryway of capital contribution or otherwise) in any Subsidiary, the requirements of Section 6.9 are satisfied and (y) the Consolidated Senior Leverage Ratio of the Parent Borrower and its Subsidiaries is no greater than 3.00 to 1.00, computed on a pro forma basis (giving effect to such Investments and any Indebtedness incurred in connection therewith) as at the last day of the most recently ended fiscal quarter of the Parent Borrower and its Subsidiaries for which financial statements are available;
(k) other Restricted SubsidiaryInvestments constituting Permitted Business Acquisitions; and
(hl) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are in addition to Investments otherwise permitted by subsection 6.6this Section 7.8, so long as no Default or Event of Default shall have occurred and be continuing, Investments by the Parent Borrower or any of its Subsidiaries in an aggregate amount (valued at cost) not to exceed $25,000,000 since the Closing Date .
Appears in 1 contract
Samples: Credit Agreement (Conmed Corp)
Limitation on Investments, Loans and Advances. Make On or after the --------------------------------------------- Closing Date, make any advance, loan, extension of credit (by way of guarantee or otherwise) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of of, or make any assets constituting a business unit ofAcquisition from, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in Cash Equivalents;
(c) Guarantee Obligations permitted by Section 7.2;
(d) loans and advances ("Employee Loans") to employees of the -------------- Borrower or its Subsidiaries in the ordinary course of business (including, without limitation, for travel, entertainment and relocation expenses), so long as, after giving effect to the making of any Investment Employee Loan, the aggregate amount of Employee Loans made since the Closing Date (determined net of amounts actually repaid in cash in respect thereof) (the "Employee -------- Loan Outstanding Amount"), when added to the aggregate amount of Restricted ----------------------- Payments made since the Closing Date pursuant to Section 7.6(b), shall not exceed $10,000,000;
(e) the Recapitalization;
(f) investments made by the Borrower or any Restricted Subsidiary of its Subsidiaries with the proceeds of any Reinvestment Deferred Amount;
(g) capital contributions or other than similar investments by the Borrower or any Special Purpose Subsidiary) in Persons engaged of its Subsidiaries in the telecommunications Borrower or any Person that, prior to any such investment, is a Wholly Owned Subsidiary Guarantor or, if made in the ordinary course of business, any other Wholly Owned Subsidiary;
(h) any Acquisition of any Person or business, either through the purchase of the assets (including the goodwill) of such Person or business or businesses related thereto, provided that (i) the purchase of 100% of the Capital Stock of such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds each of the Borrower in following conditions is satisfied: (i) the requirements of Section 6.11 have been satisfied with respect to such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that Acquisition and the Borrower shall have made a Pro Rata Payment Offer be in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior pro forma compliance with Section 7.1 both before and after giving effect to such InvestmentAcquisition; (ii) no Default or Event of Default has occurred and is continuing, or would occur after giving effect to such Acquisition; (iii) the aggregate Purchase Prices (not including clause (b) of the definition thereof) of all such Acquisitions in any fiscal year of the Borrower, when combined with the aggregate amount of Capital Expenditures (Discretionary) made during such fiscal year, shall not exceed $125,000,000; (iv) the Purchase Price (or any portion thereof) which is paid in the form of the consideration referred to in clause (b) of the definition of Purchase Price for all such Acquisitions in any fiscal year of the Borrower shall not exceed $200,000,000; and (v) any such Acquisition shall have been approved by the Board of Directors or such comparable governing body of the Person or business being acquired; provided, that if -------- the Consolidated Leverage Ratio as of the last day of the most recently completed fiscal quarter for which the relevant financial information is available both before and after giving pro forma effect for such Acquisition as if such Acquisition were consummated on the first day of the Reference Period ending on the last day of the most recently completed fiscal quarter is less than 4.5 to 1.0, then the amount referred to in clause (iii) shall be increased to $200,000,000 (and if availability under this proviso is utilized the Consolidated Leverage Ratio Stepdown Date shall occur); and provided, further, that if the Consolidated Leverage ----------------- Ratio as of the last day of the most recently completed fiscal quarter for which the relevant financial information is available after giving pro forma effect for such Acquisition as if such Acquisition were consummated on the first day of the Reference Period ending on the last day of the most recently completed fiscal quarter is less than 4.5 to 1.0, then the amount referred to in clause (iv) shall be increased to $300,000,000 (all such Acquisitions, the Borrower is in Pro Forma Compliance;"Permitted Acquisitions"); ----------------------
(di) any Investment investments by the Borrower or any Restricted Subsidiary of its Subsidiaries in patient trust accounts;
(other than any Special Purpose Subsidiaryj) in Persons not engaged investments representing non-cash consideration in the telecommunications business or businesses related thereto if, after giving effect thereto, form of senior notes of the aggregate amount of such Investments then held purchasing party pledged by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired relevant Subsidiary in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds favor of the Borrower in such amount that after giving effect thereto, Collateral Agent for the Special Payment Condition shall be satisfied, provided that benefit of the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition Lenders received by the Borrower and or any of its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, Sale; provided that the aggregate amount of any such -------- investments shall not exceed $50,000,000 during the term of this Agreement; and
(ik) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred investments otherwise expressly permitted by them in exchange thereforthis Section 7.8, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment investments by the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees or any of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding (valued at cost) not to exceed $10,000,000 at any one time outstanding;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) 20,000,000 in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; and
(h) promissory notes and other deferred payment obligations that constitute proceeds aggregate during the term of Asset Sales that are permitted by subsection 6.6this Agreement.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advancescollectively, loans, extensions of credit, capital contributions, purchases and investments being herein called an "InvestmentsInvestment")) in, any Person, except:except : 77 72
(a) extensions of trade credit by the Borrower or its Subsidiaries in the ordinary course of business;
(b) Investments in Cash Equivalentsthe Acquisition;
(c) any Investment by loans and advances to directors, officers and employees of the Parent or its Subsidiaries in an aggregate amount for the Borrower or and its Subsidiaries not to exceed $1,000,000 at any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;one time outstanding; and
(d) Investments by Parent and its Subsidiaries in, and loans, advances and capital contributions by Parent to, its Subsidiaries (including any Investment by reasonable investment or capital contribution in connection with the Borrower or any Restricted Subsidiary (other than any Special Purpose formation of such Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto ifand investments by such Subsidiaries in, after giving effect theretoand loans, the aggregate amount of such Investments then held advances and capital contributions by Subsidiaries to, the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalizationother Subsidiaries; provided that (i) such Personthe Borrower and its Subsidiaries (other than Subsidiaries of ERO) shall not be permitted to make any investments in, or loans, advances or capital contributions to, ERO and its Subsidiaries until such time as the Person which shall become Borrower has purchased not more than 75% of the owner issued and outstanding Capital Stock of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed ERO pursuant to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Tender Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to the extent the Subsidiary into which any such Investmentan investment is made is not a Credit Party, such investment shall be limited to the Borrower is reasonable capitalization of a Subsidiary organized in Pro Forma Complianceconnection with a trade receivable financing transaction permitted by subsection 11.6(k);
(e) Investments by the Credit Parties in cash or Cash Equivalents;
(f) Investments in existence on the date hereof and listed on Schedule 11.10(f) and any Investment arising from extensions, renewals, modifications or restatements or replacements thereof provided that no such extensions, renewal, modification, restatement or replacement shall increase the acquisition amount of the original loan, advance or investment;
(g) promissory notes and other noncash consideration received by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swapasset sales permitted by subsection 11.6;
(h) Investments permitted by subsections 11.4, provided 11.8 and 11.9;
(i) Investments by the Borrower and its Subsidiaries in Interest Rate Agreements entered into in the ordinary course of business for nonspeculative purposes;
(j) Investments (including debt obligations and Capital Stock) by Parent and its Subsidiaries received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;
(k) extent said amounts have not been utilized for other purposes permitted by subsection 11.9(b), 11.10(m) or 11.16(b), provided, that (i) such actions as may be required or reasonably requested to the extent ensure that the Borrower and its Restricted Subsidiaries give consideration Administrative Agent, for the System ratable benefit of the Lenders, has a perfected first priority security interest in any assets acquired, subject to Liens permitted by subsection 11.3, shall have been taken and (ii) (I) on a pro forma basis for the period of four consecutive fiscal quarters most recently ended (assuming the consummation of such Permitted Acquisition and the incurrence or Systems acquired by them assumption of any Indebtedness in connection therewith occurred on the first day of such period of four consecutive fiscal quarters), the Borrower shall be in compliance with such Asset Swap that is the covenants contained in subsection 11.1 and (II) the Administrative Agent shall have received calculations in reasonable detail reasonably satisfactory to it showing compliance with the requirements of this clause (ii) certified by a Responsible Officer of the Borrower;
(l) in addition to the System or Systems transferred foregoing, Investments by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions Subsidiaries of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries Parent in an aggregate principal amount outstanding not to exceed $10,000,000 3,000,000 (at cost, without regard to any write up or write down thereof) at any one time outstanding;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; and
(hm) promissory notes and other deferred payment obligations that constitute in addition to the Investments permitted pursuant to this subsection 11.10, to the extent such proceeds are not otherwise utilized pursuant to subsection 11.9(b) or 11.10(k), the Subsidiaries of Parent may make additional Investments (which shall not be counted in the limitations set forth above) as follows:
(i) Investments consisting of the investment of Net Proceeds not required to be applied to prepay the Tranche A Loans or Tranche B Loans pursuant to subsection 7.5, including (x) with respect to the investment of proceeds of Asset Sales that the insurance and condemnation proceeds not required to prepay the Tranche A Loans or Tranche B Loans pursuant to subsection 7.5 and (y) with respect to the investment of proceeds of the sale of assets which are permitted by pursuant to subsection 6.611.6; (ii) to the extent said proceeds are not otherwise utilized pursuant to subsection 11.9(b), 11.10(k) or 11.16(b), Investments consisting of the investment of Excess Cash Flow for all prior fiscal years ended during the term of this Agreement and not required to be applied pursuant to subsection 7.5(e) and (iii) Investments of the proceeds of Contributed Equity.
Appears in 1 contract
Samples: Credit Agreement (Ero Marketing Inc)
Limitation on Investments, Loans and Advances. Make On or after the --------------------------------------------- Reorganization Closing Date, make any advance, loan, extension of credit (by way of guarantee or otherwise) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of of, or make any assets constituting a business unit ofAcquisition from, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in Cash Equivalents;
(c) Guarantee Obligations permitted by Section 11.2;
(d) loans and advances ("Employee Loans") to employees of Paragon or -------------- its Subsidiaries in the ordinary course of business (including, without limitation, for travel, entertainment and relocation expenses), so long as, after giving effect to the making of any Investment Employee Loan, the aggregate amount of Employee Loans made since the Reorganization Closing Date (determined net of amounts actually repaid in cash in respect thereof) (the "Employee Loan Outstanding Amount"), when added to the aggregate amount of -------------------------------- Restricted Payments made since the Reorganization Closing Date pursuant to Section 11.6(b), shall not exceed $10,000,000;
(e) the Recapitalization;
(f) investments made by the Borrower Paragon or any Restricted of its Subsidiaries with the proceeds of any Reinvestment Deferred Amount;
(g) capital contributions or other similar investments by Paragon or any of its Subsidiaries in Paragon or any Person that, prior to any such investment, is a Wholly Owned Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged Guarantor or, if made in the telecommunications ordinary course of business, any other Wholly Owned Subsidiary;
(h) any Acquisition of any Person or business, either through the purchase of the assets (including the goodwill) of such Person or business or businesses related thereto, provided that (i) the purchase of 100% of the Capital Stock of such Person, if it each of the following conditions is satisfied: (i) the requirements of Section 10.11 have been satisfied with respect to such Acquisition and Paragon shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired in pro forma compliance with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior Section 11.1 both before and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total CapitalizationAcquisition; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior no Default or Event of Default has occurred and is continuing, or would occur after giving effect to such InvestmentAcquisition; (iii) the aggregate Purchase Prices (not including clause (b) of the definition thereof) of all such Acquisitions in any fiscal year of Paragon, when combined with the aggregate amount of Capital Expenditures (Discretionary) made during such fiscal year, shall not exceed $125,000,000; (iv) the Purchase Price (or any portion thereof) which is paid in the form of the consideration referred to in clause (b) of the definition of Purchase Price for all such Acquisitions in any fiscal year of Paragon shall not exceed $200,000,000; and (v) any such Acquisition shall have been approved by the Board of Directors or such comparable governing body of the Person or business being acquired; provided, that if -------- the Consolidated Leverage Ratio as of the last day of the most recently completed fiscal quarter for which the relevant financial information is available both before and after giving pro forma effect for such Acquisition as if such Acquisition were consummated on the first day of the Reference Period ending on the last day of the most recently completed fiscal quarter is less than 4.5 to 1.0, then the amounts referred to in clauses (iii) and (iv) above shall be increased to $200,000,000 (and if availability under this proviso is utilized the Consolidated Leverage Ratio Stepdown Date shall occur); and provided, further, that if the Consolidated ----------------- Leverage Ratio as of the last day of the most recently completed fiscal quarter for which the relevant financial information is available after giving pro forma effect for such Acquisition as if such Acquisition were consummated on the first day of the Reference Period ending on the last day of the most recently completed fiscal quarter is less than 4.5 to 1.0, then the amount referred to in clause (iv) shall be increased to $300,000,000 (all such Acquisitions, the Borrower is "Permitted Acquisitions"); ----------------------
(i) investments by Paragon or any of its Subsidiaries in Pro Forma Compliancepatient trust accounts;
(ej) investments representing non-cash consideration in the form of senior notes of the purchasing party pledged by Paragon or the relevant Subsidiary in favor of the Agent for the benefit of the Lenders received by Paragon or any Investment arising from the acquisition by the Borrower and of its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, Sale; provided that the aggregate amount of any such investments shall not exceed -------- $50,000,000 during the term of this Guarantee;
(ik) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System investments otherwise expressly permitted by this Section 11.8, investments by Paragon or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions any of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding (valued at cost) not to exceed $10,000,000 at any one time outstanding;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) 20,000,000 in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; and
(h) promissory notes and other deferred payment obligations that constitute proceeds aggregate during the term of Asset Sales that are permitted by subsection 6.6this Guarantee.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment investment, in cash or by transfer of assets or property, in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments"each an “Investment”), any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) any Investment by Investments existing on the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) Closing Date and described in Persons engaged in Schedule 8.9(c), setting forth the telecommunications business or businesses related thereto, provided that (i) respective amounts of such Person, if it shall be Investments as of a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliancerecent date;
(d) any Investment Investments in notes receivable and other instruments and securities obtained in connection with transactions permitted by subsection 8.6(a)(iii);
(e) loans and advances to officers, directors or employees of Holding, the Parent Borrower or any Restricted Subsidiary of their respective Subsidiaries (i) in the ordinary course of business for travel and entertainment or relocation expenses, (ii) existing on the Closing Date and described in Schedule 8.9(c), (iii) made after the Closing Date for other purposes, not to exceed (as to Holding and all its Subsidiaries), together with the amount of all Guarantee Obligations permitted pursuant to subsection 8.4 (f)(iii), $5,000,000 in the aggregate outstanding at any time or (iv) relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity or as otherwise specified in subsection 8.11;
(f) (i) Investments by the Parent Borrower in its Wholly Owned Subsidiaries (other than any Special Purpose Receivables Subsidiary) in Persons not engaged and by such Subsidiaries in the telecommunications business or businesses related thereto if, after giving effect thereto, Parent Borrower and in Wholly Owned Subsidiaries of the Parent Borrower (other than any Receivables Subsidiary) and (ii) Investments in Holding in amounts and for purposes for which dividends are permitted under subsection 8.7 so long as at no time does the aggregate amount of such Investments then held and relevant dividends exceed the permitted amount of such dividends;
(g) acquisitions expressly permitted by subsection 8.10;
(h) Investments by the Parent Borrower and its Restricted Subsidiaries does not exceed (x) at under Permitted Hedging Arrangements, including Investments of any time prior of the Borrowers under Interest Rate Protection Agreements relating to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% Indebtedness of then Total Capitalization; provided that such Borrower under this Agreement;
(i) such Personany Investment by the Parent Borrower and its Subsidiaries which, in the judgment of the Parent Borrower, is prudent and reasonably necessary in connection with, or otherwise required by the Person which shall become terms of, any Permitted Receivables Transaction;
(j) Investments in the owner nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business or otherwise described in subsection 8.3(c), (d) or (f);
(k) Investments representing non-cash consideration received by the Parent Borrower or any of its Subsidiaries in connection with any Asset Sale, provided that in the case of any assets acquired Asset Sale permitted under subsection 8.6(a)(vii), such non-cash consideration constitutes not more than 25% of the aggregate consideration received in connection with such Investment, shall become a Restricted Subsidiary unless Asset Sale and any such non-cash consideration received by the Parent Borrower or any of its Subsidiaries (A) such Person or assets shall be acquired with (I) proceeds of capital contributed other than Foreign Subsidiaries to the Borrower expressly extent that the Parent Borrower’s obligations would be secured by a pledge of such non-cash consideration) is pledged to the Administrative Agent for such purpose and/or (II) funds the benefit of the Lenders pursuant to the Security Documents;
(l) Investments by the Parent Borrower or any of its Subsidiaries in a Person in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or such Subsidiary in an aggregate amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in not to exceed at any time an amount equal to $10,000,000, provided that such Investment amount shall be reduced by the aggregate principal amount of Indebtedness in respect of Guarantee Obligations permitted by subsection 8.4(n);
(m) Investments representing evidences of Indebtedness, securities or other property received from another Person by the Parent Borrower or any of its Subsidiaries in connection with any bankruptcy proceeding or other reorganization of such other Person or as a result of foreclosure, perfection or enforcement of any Lien or exchange for evidences of Indebtedness, securities or other property of such other Person held by the Parent Borrower or any of its Subsidiaries, provided that any such securities or other property received by the Parent Borrower or any of its Subsidiaries (other than Foreign Subsidiaries (to the extent that the Parent Borrower’s obligations would be secured by a pledge of such securities or other property) and (Bany Insurance Subsidiary) is, to the extent required under the Guarantee and Collateral Agreement, pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documents, and provided, further, that in the event that the aggregate expected value of such securities or other property received with respect to a Person is less than $250,000, the Parent Borrower designates or such PersonSubsidiary may, by notice rather than pledge such securities and other property to the Administrative Agent, an Unrestricted Subsidiary dispose of such securities and (ii) immediately prior other property within 180 days of the receipt thereof and after giving effect any such securities and other property not so disposed of by such 180th day shall, to such Investmentthe extent required under the Guarantee and Collateral Agreement, be pledged to the Borrower is in Pro Forma ComplianceAdministrative Agent for the benefit of the Lenders pursuant to the Security Documents;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(fn) loans and advances to employees Management Investors in connection with the purchase by such Management Investors of Capital Stock of Holding of up to $10,000,000 outstanding at any one time, provided that such amount shall be reduced by the Borrower and its Restricted Subsidiaries in an aggregate principal amount of Indebtedness in respect of Guarantee Obligations permitted by subsection 8.4(b);
(o) loans of up to $20,000,000 outstanding not to exceed $10,000,000 at any one time outstandingto Local Agents and Owner/Operators in the ordinary course of business for working capital purposes, provided that such amount shall be reduced by the aggregate principal amount of loans and advances in respect of Guarantee Obligations permitted by subsection 8.4(l);
(gp) advances to Local Agents and Owner/Operators in the ordinary course of business for working capital purposes;
(q) Investments by the Parent Borrower in and its Restricted Subsidiaries and Investments represented by any Restricted Financing Lease or conditional sale of equipment by the Parent Borrower or any of its Subsidiaries to Local Agents or Owner/Operators;
(r) Investments constituting, or acquired with amounts constituting, reserves or surplus maintained by any Insurance Subsidiary (other than in accordance with any Special Purpose Subsidiary) Requirement of Law in respect of obligations pursuant to insurance policies issued by such Insurance Subsidiary in the ordinary course of its insurance business;
(s) loans and advances by the Parent Borrower or any of its Subsidiaries to Holding expressly permitted by subsection 8.7;
(t) loans and advances made by CRS Holding, Rowan, any Restricted Subsidiary (other than any Special Purpose Subsidiary) in of their respective Subsidiaries or any other Restricted SubsidiarySubsidiary of the Parent Borrower primarily engaged in the Employee Relocation Business for the purpose of financing a portion of the purchase price for the acquisition of residential real estate, fixtures or related assets, provided that such loans and advances are made by CRS Holding, Rowan or any such Subsidiaries in the ordinary course of business in connection with the provision of relocation services; and
(hu) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are Investments not otherwise permitted by the preceding clauses of this subsection 6.68.9 not to exceed in the aggregate $25,000,000.
Appears in 1 contract
Samples: Credit Agreement (Sirva Inc)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of of, or any assets constituting a business unit of, or make or maintain any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any PersonPerson (all of the foregoing, “Investments”), except:
(a) extensions (i) loans or advances in respect of trade credit intercompany accounts attributable to the operation of the Company’s cash management system and (ii) loans or advances by the Company or any of its Subsidiaries to a Subsidiary Guarantor (or a Subsidiary that would be a Subsidiary Guarantor but for the lapse of time until such Subsidiary is required to be a Subsidiary Guarantor);
(b) Investments in Subsidiaries of the Company that are not Subsidiary Guarantors (or a Subsidiary that would be a Subsidiary Guarantor but for the lapse of time until such Subsidiary is required to be a Subsidiary Guarantor) and that do not directly or indirectly own any interest in, or operate or manage, a Station; provided that at all times the aggregate amount of all such Investments shall not exceed $20,000,000;
(c) Investments, not otherwise described in this subsection 8.7, in Subsidiary Guarantors (or a Subsidiary that would be a Subsidiary Guarantor but for the lapse of time until such Subsidiary is required to be a Subsidiary Guarantor) that otherwise are not prohibited under the terms of this Agreement;
(d) any Subsidiary of the Company may make Investments in the Company (by way of capital contribution or otherwise);
(e) the Company and its Subsidiaries may invest in, acquire and hold (i) Cash Equivalents and cash and (ii) other cash equivalents invested in or held with any financial institutions to the extent such amounts under this clause (ii) do not exceed $1,000,000 per individual institution and $5,000,000 in the aggregate at any one time;
(f) the Company or any of its Subsidiaries may make travel and entertainment advances and relocation loans in the ordinary course of business to officers, employees and agents of the Company or any such Subsidiary;
(g) the Company or any of its Subsidiaries may make payroll advances in the ordinary course of business;
(bh) Investments the Company or any of its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in Cash Equivalentsthe ordinary course of business and payable or dischargeable in accordance with customary trade terms (provided that nothing in this clause shall prevent the Company or any Subsidiary from offering such concessionary trade terms, or from receiving such investments or any other investments in connection with the bankruptcy or reorganization of their respective suppliers or customers or the settlement of disputes with such customers or suppliers arising in the ordinary course of business, as management deems reasonable in the circumstances);
(ci) the Company and its Subsidiaries may make Investments in connection with asset sales permitted by subsection 8.6 or to which the Required Lenders consent;
(j) existing Investments of the Company described in Schedule 8.7;
(k) the Company and its Subsidiaries may make non-hostile acquisitions (by merger, purchase, lease (including any Investment by the Borrower lease that contains up-front payments and/or buyout options) or otherwise) of any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business, division or line of business or businesses related theretoat least 80% of the outstanding capital stock or other equity interests of any corporation or other entity, provided that as long as (i) such Personthe acquisition or investment is in a similar, if it shall be a Subsidiarycomplementary or incidental line of business as conducted by the Company and its Subsidiaries on the Closing Date, shall become a Restricted Subsidiary unless (Aii) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, immediately after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower no Default or Event of Default shall have occurred and be continuing, (iii) the aggregate amount of asset swaps made a Pro Rata Payment Offer in pursuant to subsection 8.6(q) and acquisitions under this clause (k) shall not exceed an amount equal to such Investment and (Bx) $40,000,000 plus (y) Cumulative Retained Excess Cash Flow to the extent not used to finance Restricted Payments pursuant to subsection 8.8(b), (iv) the Borrower designates such Personaggregate amount of cash and Cash Equivalents of the Company, by notice after giving pro forma effect to the Administrative Agentacquisition, as an Unrestricted Subsidiary and shall not be less than $25,000,000, (iiv) immediately prior and after giving effect to such Investmentacquisition, the Borrower is Consolidated Total Leverage Ratio, recomputed as of the last day of the most recently ended fiscal quarter of the Company for which financial statements are available as if such acquisition had occurred on the first day of such period for purposes of calculating Consolidated EBITDA and using Consolidated Total Indebtedness as of the date of, and after giving effect to, such acquisition, shall be at least 0.50x lower than the Consolidated Total Leverage Ratio level applicable under subsection 8.1(a) for such date and (vi) the Company has delivered to the Administrative Agent a certificate of a Responsible Officer to the effect set forth in Pro Forma Complianceclauses (i) through (v) above, together with all relevant financial information for the Person or assets to be acquired (any acquisition satisfying clauses (i) through (vi), a “Permitted Acquisition”)
(l) the Company and its Subsidiaries may make loans or advances to, or acquisitions or other Investments in, other Persons (exclusive of Persons which are, or become, Foreign Subsidiaries) that constitute or are in connection with joint ventures, provided the consideration paid by the Company or any of its Subsidiaries in all such transactions after the Closing Date (net, in the case of Investments and other transfers, of any repayments or return of capital in respect thereof actually received in cash by the Company or its Subsidiaries (net of applicable taxes) after the Closing Date), does not exceed in the aggregate $5,000,000;
(dm) any Investment the Company and its Subsidiaries may make loans or advances to, or other Investments in, or otherwise transfer funds (including without limitation by way of repayment of loans or advances) to, Foreign Subsidiaries (including new Foreign Subsidiaries); provided that the consideration paid by the Borrower Company or any Restricted Subsidiary of its Subsidiaries in all transactions after the Closing Date (other than any Special Purpose Subsidiary) in Persons not engaged net, in the telecommunications business case of loans, advances, investments and other transfers, of any repayments or businesses related thereto if, after giving effect thereto, the aggregate amount return of such Investments then held capital in respect thereof actually received in cash by the Borrower and Company or its Restricted Subsidiaries (net of applicable taxes) after the Closing Date) does not exceed in the aggregate $5,000,000;
(xn) at the Company or any time prior to the date on which the Special Payment Condition shall have occurredof its Subsidiaries may acquire obligations of one or more directors, $50,000,000officers, employees, members or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, management or the Person which shall become the owner consultants of any assets acquired of the Company or its Subsidiaries in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds person’s acquisition of capital contributed to the Borrower expressly for such purpose and/or (II) funds shares of the Borrower in such amount that after giving effect theretoCompany, so long as no cash is actually advanced by the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal Company or any of its Subsidiaries to such Investment and (B) persons in connection with the Borrower designates acquisition of any such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Complianceobligations;
(eo) any Investment arising from the acquisition by the Borrower Company and its Restricted Subsidiaries of any System or Systems may acquire assets with the Net Proceeds from Asset Sales in connection accordance with any Asset Swap, the reinvestment rights provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of under subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstanding;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary4.4(c); and
(hp) promissory notes the Company and other deferred payment obligations that constitute proceeds of its Subsidiaries may acquire assets under a Permitted Asset Sales that are Swap or an asset swap permitted by subsection 6.68.6(q).
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make Make, and shall not permit any Subsidiary to make, any advance, loan, extension of credit (excluding Guarantee Obligations but including any payment by a guarantor thereunder) or capital contribution to, or purchase any stockCapital Stock, bonds, notes, debentures or other securities of, or purchase all or a material part of or any assets constituting a business unit or line of business of (or all or substantially all the assets of), or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any PersonPerson (any of the foregoing, an “Investment”), except:
(ai) (A) extensions of trade credit in the ordinary course of businessbusiness and (B) Investments (including reinvestments thereof by any intermediate Subsidiary) to the extent the ultimate proceeds thereof are applied to maintenance capital expenditures in the ordinary course of business and required to comply with Section 5.01(e) for merchant generation plants of any Wholly-Owned Subsidiary;
(bii) Investments [Intentionally Omitted];
(iii) the Borrower may acquire all or a material part of any domestic regulated business, provided that the aggregate principal amount of Debt incurred or assumed by the Borrower and its Subsidiaries in connection with such acquisition (together with the aggregate principal amount of Indebtedness of such acquired Person) shall not exceed fifty percent (50%) of the lesser of the fair value or cost of such acquired assets (and, to the extent such Debt is incurred in connection with such acquisition or in contemplation of such acquisition, such Debt shall not have a scheduled maturity, or require any principal payment prior to six months after the Termination Date);
(iv) the Borrower and its Subsidiaries may invest in, acquire and hold Cash Equivalents;
(cv) the Borrower or any Investment of its Subsidiaries may make travel and entertainment advances, relocation loans and payroll advances in the ordinary course of business to officers and employees of the Borrower or any such Subsidiary;
(vi) Investments of the Borrower or any Subsidiary existing on the date hereof and the receipt of any additional securities constituting payments in kind on such existing Investments;
(vii) Investments in obligations arising out of bankruptcy of customers and suppliers;
(viii) subject to 5.02(g), Investments consisting of non-cash consideration received in connection with sales of assets;
(ix) Investments in a Wholly-Owned Subsidiary of Borrower in furtherance of the winding down or exiting of the operations of the unregulated merchant energy business or operations of Borrower and its Subsidiaries;
(x) in connection with cash management and tax efficient financing of the Borrower and its Subsidiaries in the ordinary course of business consistent with past practice, Investments by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfiedBorrower or any Subsidiary of the Borrower, provided that the Borrower proceeds thereof shall have made a Pro Rata Payment Offer in an amount equal not be used to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliancefinance any capital expenditure;
(dxi) any Investment by other Investments of the Borrower or any Restricted Subsidiary (other after the date hereof of not more than any Special Purpose Subsidiary) in Persons not engaged $30,000,000 in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstanding;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiaryaggregate; and
(hxii) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6Investments the Borrower or any Subsidiary is contractually obligated to make on the date hereof.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting all or a material part of a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any PersonPerson (collectively, “Investments”), except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in cash and Cash Equivalents;
(c) Guarantee Obligations permitted by Section 7.2;
(d) loans and advances to employees or directors of the Borrower or its Subsidiaries in the ordinary course of business (including for travel, entertainment and relocation expenses) in an aggregate amount for the Borrower and its Restricted Subsidiaries not to exceed $2,000,000 at any one time outstanding; provided, however that this provision shall not limit key man insurance;
(e) Investments in Similar Businesses and joint ventures in an aggregate amount not to exceed, the greater of (x) $20,000,000 and (y) 30% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) outstanding at any time (with such outstanding amount being deemed reduced by any returns on such investments received by the Borrower and its Subsidiaries) and determined at the time such Investment is made;
(f) [Reserved];
(g) Investments (x) by the Borrower or any of its Restricted Subsidiaries in the Borrower or any Subsidiary Guarantor in the ordinary course of business and (y) between and among Subsidiaries of the Borrower that are not Loan Parties;
(h) Investments (including debt obligations and Capital Stock) by the Borrower or its Subsidiaries received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;
(i) so long as no Default or Event of Default shall have occurred and be continuing, the Borrower or any Restricted Subsidiary may make advances, loans or extensions of credit to any Foreign Subsidiary or CFC Holding Company; provided that the Indebtedness of such Foreign Subsidiary or CFC Holding Company is permitted under Section 7.2(k);
(j) [Reserved];
(k) any Investment or series of Investments by the Borrower or any Restricted Subsidiary in a Person that is engaged in a Similar Business (other than or in the assets or property of a Person or a line of business, in each case, with respect to a Similar Business), if as a result of such Investment (a “Permitted Acquisition”), (x) (1) such Person becomes a Guarantor (or such assets or line of business become owned by a Guarantor) or (2) otherwise, the aggregate outstanding amount of Investments made under this clause (k) by Loan Parties and their Restricted Subsidiaries that are not Foreign Subsidiaries does not exceed $50,000,000 (which outstanding amount shall be reduced if such Person later becomes a Guarantor or any Special Purpose Subsidiarysuch assets or line of business are transferred to a Guarantor), and (y) in Persons engaged each case, any Investment held by such Person (not acquired by such person in contemplation of such Permitted Acquisition); provided that, subject to the telecommunications business or businesses related theretoBorrower’s right to make an LCT Election with respect to any Limited Condition Transaction, provided that in which case, Section 1.3(b) shall apply, (i) such Personno Event of Default under clauses (a) or (f) of Article VIII shall have occurred and be continuing, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (Aii) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made be in compliance, on a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such PersonForma Basis, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, with the Borrower is in Pro Forma Compliance;
(d) any Investment by Financial Covenants recomputed as at the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds last day of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees most recently ended fiscal quarter of the Borrower and its Restricted Subsidiaries for which financial statements are available as if such Indebtedness had been incurred on the first day of each relevant period for testing such compliance, and (iii) such Investment was not effected pursuant to a hostile offer; provided, further, that Investments by Foreign Subsidiaries which are non-Loan Parties may use their own cash and Cash Equivalents to make Investments in connection with Permitted Acquisitions in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstandingunlimited amount;
(gl) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary[Reserved]; and
(hm) promissory notes Investments in Unrestricted Subsidiaries in an aggregate amount not to exceed, the greater of (x) $20,000,000 and other deferred payment obligations that constitute proceeds (y) 30% of Asset Sales that are permitted Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis) outstanding at any time (with such outstanding amount being deemed reduced by subsection 6.6any returns on such investments received by the Borrower and its Subsidiaries and determined at the time such Investment is made).
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment investment, in cash or by transfer of assets or property, in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called each an "InvestmentsINVESTMENT"), any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in cash and Cash Equivalents;
(c) Investments existing on the Closing Date and described in Schedule 8.9(c), setting forth the respective amounts of such Investments as of a recent date;
(d) Investments in notes receivable and other instruments and securities obtained in connection with transactions permitted by subsection 8.6(c);
(e) loans and advances to officers, directors or employees of Holding or any Investment of its Subsidiaries (i) in the ordinary course of business for travel and entertainment expenses, (ii) existing on the Closing Date and described in Schedule 8.9(c), (iii) made after the Closing Date for relocation expenses in the ordinary course of business, (iv) made for other purposes in an aggregate amount (as to Holding and all of its Subsidiaries), together with the aggregate amount of all Guarantee Obligations permitted pursuant to subsection 8.4(f)(iii), of up to $2,500,000 outstanding at any time and (v) relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity or as otherwise specified in subsection 8.11;
(f) Investments by (i) the Borrower in its Wholly Owned Subsidiaries (other than any Receivables Subsidiary) and by such Wholly Owned Subsidiaries in the Borrower and in Wholly Owned Subsidiaries of the Borrower (other than any Receivables Subsidiary) and (ii) Investments in Holding and RIC Holding in amounts and for purposes for which dividends are permitted under subsection 8.7;
(g) acquisitions expressly permitted by subsection 8.10;
(h) Investments of the Borrower and its subsidiaries under Interest Rate Protection Agreements or under Permitted Hedging Arrangements;
(i) Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business or otherwise described in subsection 8.3(c), (d) or (f);
(j) Investments representing non-cash consideration received by the Borrower or any Restricted Subsidiary (other than of its Subsidiaries in connection with any Special Purpose Subsidiary) in Persons engaged Asset Sale, PROVIDED that in the telecommunications business or businesses related theretocase of any Asset Sale permitted under subsection 8.6(i), provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) non-cash consideration constitutes not more than 25% of the aggregate consideration received in connection with such Person or assets shall be acquired with (I) proceeds of capital contributed to Asset Sale and any such non-cash consideration received by the Borrower expressly for such purpose and/or (II) funds or any of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice its Domestic Subsidiaries is pledged to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect Agent for the benefit of the Lenders pursuant to such Investment, the Borrower is in Pro Forma ComplianceSecurity Documents;
(dk) any Investment by the Borrower or any Restricted Subsidiary (other than any and its Subsidiaries in a Special Purpose Subsidiary) in Persons not engaged Subsidiary which, in the telecommunications business judgment of the Borrower, is prudent and reasonably necessary in connection with, or businesses related thereto ifotherwise required by the terms of, after giving effect thereto, the aggregate amount of such any Permitted Receivables Transaction;
(l) Investments then held by the Borrower and or any of its Restricted Subsidiaries does in a Person in connection with a joint venture or similar arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Borrower or such Subsidiary in an aggregate amount not to exceed (x) at any time prior an amount equal to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization30,000,000; provided PROVIDED that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets amount shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in increased by an amount equal to $10,000,000 on each anniversary of the Closing Date, so long as no Default or Event of Default shall have occurred and be continuing on any date on which such Investment amount is to be increased, (ii) such amount and any increase in such amount permitted by clause (i) shall be reduced by the aggregate principal amount of Indebtedness in respect of Guarantee Obligations permitted by subsection 8.4(p), and (Biii) the Borrower designates or such Person, by notice to Subsidiary complies with the Administrative Agent, an Unrestricted Subsidiary provisions of subsection 7.9(b) and (iic) immediately prior and after giving effect hereof, if applicable, with respect to such Investment, the Borrower is in Pro Forma Complianceownership interest;
(em) any Investment arising from the acquisition Investments in industrial development or revenue bonds or similar obligations secured by assets leased to and operated by the Borrower or any of its Subsidiaries that were issued in connection with the financing of such assets, so long as the Borrower or any such Subsidiary may obtain title to such assets at any time by optionally cancelling such bonds or obligations, paying a nominal fee and terminating such financing transaction;
(n) Investments representing evidences of Indebtedness, securities or other property received from another Person by the Borrower or any of its Restricted Subsidiaries of any System or Systems in connection with any Asset Swapbankruptcy proceeding or other reorganization of such other Person or as a result of foreclosure, provided perfection or enforcement of any Lien or exchange for evidences of Indebtedness, securities or other property of such other Person held by the Borrower or any of its Subsidiaries; PROVIDED that any such securities or other property received by the Borrower or any of its Domestic Subsidiaries (iother than a Subsidiary of a Foreign Subsidiary) is pledged to the extent that the Borrower and its Restricted Subsidiaries give consideration Administrative Agent for the System or Systems acquired by them in connection with such Asset Swap that is in addition benefit of the Lenders pursuant to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma ComplianceSecurity Documents;
(fo) loans and advances to employees Management Investors in connection with the purchase by such Management Investors of Capital Stock of Holding of up to $25,000,000 outstanding at any one time; PROVIDED that such amount shall be reduced by the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstanding;
(g) Investments of Indebtedness in respect of Guarantee Obligations permitted by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiarysubsection 8.4(b); and
(hp) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are Investments not otherwise permitted by the preceding clauses of this subsection 6.68.9 not to exceed in the aggregate $10,000,000.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make Neither the Borrower nor Guarantor shall make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, exceptexcept as otherwise expressly permitted by the terms hereof, and except for:
(a) extensions of trade credit credit, accounts receivable and loans and advances extended to employees, consultants and subcontractors in the ordinary course of business, provided that in the case of employees, such amounts in the case of Borrower shall not exceed $10,000 for any individual or $20,000 in the aggregate at any time outstanding, except as set forth on Schedule 6.16(a), and such amounts in the case of Guarantor shall not exceed $750,000 in the aggregate at any time outstanding;
(b) Investments investments by Guarantor in Borrower and in Golden West;
(c) investments in Cash Equivalents;
(c) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) investments by Borrower and/or Guarantor, directly and/or indirectly, in Emerald, Xxxxxxxxx and/or any Investment of Xxxxxxxxx'x Subsidiaries and the making by Borrower and/or Guarantor, directly or indirectly, to Borrower and/or any of Borrower's Subsidiaries of loans, advances, extensions of credit (including pursuant to Finance Lease and/or operating lease transactions with Borrower and/or any of Borrower's Subsidiaries) and capital contributions to finance or fund the working capital requirements and other corporate purposes of Borrower or and/or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total CapitalizationSubsidiaries; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;and
(e) investments in, loans to, extensions of credit, advances and capital contributions to another Person, and purchases of any Investment arising from the acquisition assets constituting a business unit of another Person, by the Guarantor or any other Subsidiary of Guarantor, so long as Guarantor shall not commingle any business acquired thereby with those of Borrower and its Restricted Subsidiaries Subsidiaries, maintain separate accounting records from those of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for Subsidiaries, and take such action as may be reasonable from time to time to separate the System or Systems operations and corporate identity of any business acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions from those of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstanding;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; and
(h) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6Subsidiaries.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of any Person or consummate any assets constituting a business unit of, or make any other investment in Acquisition (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called an "InvestmentsInvestment"), any Person, exceptexcept for:
(a) extensions of trade credit and prepaid expenses made in the ordinary course of business;
(b) Investments in Cash Equivalents;
; provided that (cA) any Investment by the Borrower or any Restricted Subsidiary maximum amount of cash and Cash Equivalents held in accounts (other than Consignment Inventory Accounts) over which the Administrative Agent does not have a valid and perfected Lien shall not exceed $15,000,000 at any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment time outstanding and (B) the Borrower designates such Person, by notice maximum amount of cash and Cash Equivalents held in Consignment Inventory Accounts shall not exceed the amounts due to suppliers of Consignment Inventory consisting of (i) the Administrative Agent, as an Unrestricted Subsidiary and cost of the Consignment Inventory actually sold plus (ii) immediately prior other expenses due and after giving effect payable to such Investment, the Borrower is in Pro Forma Compliancesuppliers of Consignment Inventory;
(di) any Investment by loans to officers of the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower or its Subsidiaries for travel, entertainment and relocation expenses in the ordinary course of business, and (iii) loans by the Borrower to its employees (other than to officers of the Borrower or any Subsidiary) in connection with management incentive plans, provided that the aggregate outstanding principal amount of all such loans and advances shall not exceed $5,000,000 at any time;
(d) Investments by the Borrower in Subsidiary Guarantors and Investments by Restricted Subsidiaries in an the Borrower and in Subsidiary Guarantors;
(e) Investments not otherwise permitted hereunder by the Borrower and Restricted Subsidiaries in Subsidiaries that are not Subsidiary Guarantors, provided that, after giving effect to such Investments, the aggregate principal then outstanding amount of all such Investments (including Investments in such Subsidiaries in the nature of sales and transfers of assets (including, pursuant to a transaction permitted under subsection 8.4) for less than fair market value and outstanding Guarantee Obligations pursuant to subsection 8.2(e)) made subsequent to the Effective Date pursuant to this paragraph (e), together with outstanding Guarantee Obligations permitted pursuant to subsection 8.2(e), shall not to exceed $10,000,000 at 10,000,000, provided, further, that the conversion of any one time outstandingIndebtedness owed to the Borrower or any Restricted Subsidiary by any Subsidiary into equity of such Subsidiary shall not constitute an additional Investment in such Subsidiary by the Borrower or such Restricted Subsidiary for purposes of the limitation contained in the immediately preceding proviso;
(f) Investments received in connection with the creation and collection of accounts receivable in the ordinary course of business;
(g) Investments received as consideration in connection with any Asset Sale or other disposition of assets permitted hereunder;
(h) Investments not otherwise permitted hereunder in Credit Card Subsidiaries in an amount, together with Guaranteed Obligations permitted pursuant to subsection 8.2(e), not to exceed $25,000,000 outstanding at any time;
(i) Investments by Credit Card Subsidiaries in connection with the Credit Card Program;
(j) loans and advances to suppliers in the ordinary course of business consistent with past practice but in any event not in excess of an outstanding principal amount of $500,000;
(k) purchases of Accounts, credit card receivables and related assets by Credit Card Subsidiaries in connection with the Credit Card Program;
(l) Acquisitions and other Investments not otherwise permitted hereunder made by the Borrower in or any of its Restricted Subsidiaries Subsidiaries, provided that, after giving effect thereto (including, without limitation, any effect on the Borrowing Base), (i) Excess Availability shall be equal to or greater than $35,000,000, and (ii) the aggregate outstanding amount of all such Investments by any Restricted Subsidiary (other than Acquisitions) -77- 192 made at any Special Purpose Subsidiarytime after the Effective Date, shall not exceed the sum of $10,000,000 and (iii) in the Borrower or by aggregate outstanding amount of all such Acquisitions (including assumed Indebtedness and the fair market value of Capital Stock issued) and other Investments made at any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiarytime after the effective date of the Existing DIP Agreement shall not exceed the sum of $40,000,000; and
(hm) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are Capital Expenditures permitted by subsection 6.68.1(b) hereof.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make The Borrower will not, and will not permit any Subsidiary to, make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of of, or any assets constituting a business unit of, or make any other investment investment, in cash or by transfer of assets or property, in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called each an "InvestmentsInvestment"), any Person, except:
(a) extensions Permitted Investments;
(b) Investments existing on the Closing Date and described in Schedule 8.08(b), setting forth the respective amounts of trade credit such Investments as of a recent date;
(c) loans and advances to officers, directors or employees in the ordinary course of business for travel and entertainment expenses;
(d) Investments (i) by Credit Parties in other Credit Parties and (ii) by Foreign Subsidiaries in other Foreign Subsidiaries;
(e) the intercompany Indebtedness permitted by Section 8.02(c);
(f) Investments in nominal amounts by Acquiror Sub in Specified Financing Subsidiaries;
(g) Investments by the Borrower or any Subsidiary in a Securitization Entity or any Investment by a Securitization Entity in any other Person, in each case, in connection with a Qualified Securitization Transaction; provided, however, that any Investment in any such Person is in the form of a Purchase Money Note, or any equity interest or interests in Permitted Vehicle Collateral generated by the Borrower or a Subsidiary and transferred to any Person in connection with a Qualified Securitization Transaction;
(h) Investments of the Credit Parties under Permitted Hedging Arrangements;
(i) Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business;
(bj) Investments representing evidences of Indebtedness, securities or other property received from another Person in Cash Equivalentsconnection with any bankruptcy proceeding or other reorganization of such other Person or as a result of foreclosure, perfection or enforcement of any Lien or exchange for evidences of Indebtedness, securities or other property of such other Person held by a Credit Party;
(ck) any Investment Investments by the Borrower or for acquisitions in connection with its Line of Business in an amount not to exceed (excluding the value of any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds Capital Stock of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired issued in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount $100,000,000; provided that after giving effect theretoto any such acquisition (i) no Default would occur and be continuing, (ii) EBITDA for the Special Payment Condition shall twelve months preceding the effective date of such acquisition (on a pro forma basis taking into account the effects of the proposed acquisition) would be satisfiedgreater than zero, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (Biii) the Borrower designates would be in pro forma compliance with the financial covenants set forth in Section 8.01 for the four quarters preceding the effective date of the acquisition and (iv) the amount of Indebtedness assumed in such Person, by notice acquisition (other than Indebtedness that finances the acquiree's fleet of vehicles) when added to the Administrative Agent, an Unrestricted Subsidiary aggregate Indebtedness assumed for all such acquisitions and any acquisitions permitted by clause (iil) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliancebelow would not exceed $10,000,000;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstanding;
(gl) Investments by the Borrower not otherwise permitted by clause (k) above, for the purpose of acquiring additional franchises, paid for solely in its Restricted Subsidiaries common stock of the Borrower; provided, that after giving effect to any such acquisition (i) no Default would occur and Investments by any Restricted Subsidiary be continuing, (ii) EBITDA for the twelve months preceding the effective date of such acquisition (on a pro forma basis taking into account the effects of the proposed acquisition) would be greater than zero, (iii) the Borrower would be in pro forma compliance with the financial covenants set forth in Section 8.01 for the four quarters preceding the effective date of the acquisition and (iv) the amount of Indebtedness assumed in such acquisition (other than Indebtedness that finances the acquiree's fleet of vehicles) when added to the aggregate Indebtedness assumed for all such acquisitions (including any Special Purpose Subsidiarysuch acquisition permitted pursuant to Section 8.08(k)) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiarywould not exceed $10,000,000; and
(hm) promissory notes and other deferred payment obligations that constitute proceeds Investments by the Borrower constituting repurchases of Asset Sales that are shares of its common stock permitted by subsection 6.6Section 8.06.
Appears in 1 contract
Samples: Credit Agreement (Fah Co Inc)
Limitation on Investments, Loans and Advances. Make The Borrower shall not, and shall not permit any of its Subsidiaries to, make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advancesany of the foregoing, loans, extensions of credit, capital contributions, purchases and investments being herein called an "InvestmentsINVESTMENT"), any Person, exceptexcept for:
(a) the Borrower's ownership interest in its Subsidiaries and certain Subsidiaries' ownership interests in certain other Subsidiaries, in each case on or prior to the Closing Date and as set forth in Section 3.27;
(b) investments in marketable securities, liquid investments and other financial instruments that are acquired for investment purposes and that have a value which may be readily established and which are investment grade, including any such investment that may be readily sold or otherwise liquidated;
(c) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower or its Subsidiaries for travel, entertainment and its Restricted Subsidiaries relocation expenses in the ordinary course of business;
(e) investments constituting non-cash consideration received in connection with an Asset Disposition, provided that such non-cash consideration shall not exceed 15% of the aggregate principal consideration received for such Asset Disposition; and provided further that the aggregate amount outstanding of any such non-cash consideration with respect to all Asset Dispositions shall not to exceed $10,000,000 5,000,000 at any one time outstanding;
(f) investments in existence as of the Closing Date, as set forth on Schedule 6;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) Acquisitions not otherwise referred to in any other Restricted Subsidiaryclause of this Section 6.7; provided that (i) the aggregate Consideration with respect to any Acquisition shall not exceed the Net Proceeds of any Equity Offerings available for such purpose; (ii) no Default has occurred and is continuing or would result from the consummation of such Acquisition (and the Borrower shall have delivered a Covenant Compliance Certificate showing PRO FORMA calculations assuming such Acquisition had been consummated to the Administrative Agent); (iii) the Acquisition (if of a radio or television station), has received final FCC approval and evidence thereof satisfactory to the Administrative Agent has been provided to the Administrative Agent; (iv) the Administrative Agent shall have received, reviewed and approved (such approval not to be unreasonably withheld) the form of all documents setting forth the terms of, effecting or otherwise relating to, such Acquisition; and (v) the Borrower shall be in compliance with the Total Debt Ratio on a PRO FORMA basis assuming such Acquisition had been consummated;;
(h) investments permitted under Section 6.2(f);
(i) investments not otherwise referred to in this Section 6.7 in an aggregate amount not to exceed $50,000,000 during the term of this Agreement, provided that no such investment shall be permitted if at the time of the making thereof a Default has occurred and is continuing or would result from the making of such investment;
(j) investments in Entravision permitted by Section 6.7(j) of the Existing Credit Agreement;
(k) New Investments; provided that (i) no Default has occurred and is continuing or would result from the consummation of such New Investment (and the Borrower shall have delivered a Covenant Compliance Certificate showing PRO FORMA calculations assuming such New Investment had been consummated to the Administrative Agent); (ii) the New Investment (if in a radio or television station), has received (if such investment shall require FCC approval) final FCC approval and evidence thereof satisfactory to the Administrative Agent has been provided to the Administrative Agent; (iii) the Administrative Agent shall have received the form of all documents setting forth the terms of, effecting or otherwise relating to, such New Investment; and (iv) the Borrower shall be in compliance with the Total Debt Ratio on a PRO FORMA basis assuming such New Investment had been consummated; and
(hl) promissory notes the Borrower and other deferred payment obligations its Subsidiaries may make an investment in a joint venture for the purpose of establishing and operating pay television channels in the United States; PROVIDED that constitute proceeds the Borrower's (or its Subsidiaries') investment therein shall not exceed $10,000,000 in the aggregate (exclusive of Asset Sales that are permitted all general and administrative expenses and affiliate sales and promotion expenses contributed by subsection 6.6Borrower (or any such Subsidiary)); and PROVIDED, FURTHER THAT (i) no Default has occurred and is continuing or would result from the consummation of such investment; and (ii) the Administrative Agent shall have received and reviewed the form of all documents setting forth the terms of, effecting or otherwise relating to, such investment.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in Cash Equivalents;
(c) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower or its Subsidiaries in the ordinary course of business;
(d) investments by the Borrower in, and loans by the Borrower to, its Subsidiaries and investments by such Subsidiaries in, and loans by Subsidiaries to other Subsidiaries, in existence on the date hereof or hereafter acquired pursuant to subsection 8.9(g);
(e) loans by the Borrower to its employees in an aggregate amount not to exceed $500,000;
(f) investments in existence on the date hereof which are described on Schedule VIII hereof; and
(g) during such time as no Default or Event of Default has occurred and is continuing or would result therefrom investments in Capital Stock or assets of wholly owned domestic Subsidiaries of the Borrower organized under the laws of any jurisdiction within the United States, PROVIDED that: (i) such investments shall be in an aggregate amount not to exceed $12,000,000 in any fiscal year of the Borrower (ii) such investments shall be in the same lines of business in which the Borrower is involved on the date hereof; (iii) the Borrower shall provide a review by (A) a certified public accountant acceptable to the Lender for any investment in an amount equal to or exceeding $2,500,000 but less than an amount that would exceed 10 percent of the total assets of the Borrower and its Restricted Subsidiaries subsidiaries as listed on the consolidated balance sheet of the Borrower (the "TEN PERCENT THRESHOLD") or (B) KPMG Peat Marwick LLP or other independent certified public accountants of nationally recognized standing for any investment in an amount equal to or exceeding the Ten Percent Threshold; (iv) any such investment in an amount equal to or exceeding $2,500,000 shall be approved in writing by the Lender, such approval to be in the Lender's discretion; and (v) any such investment requiring Loans hereunder or other Indebtedness in an aggregate principal amount outstanding not equal to exceed or exceeding $10,000,000 at any one time outstanding;
(g) Investments 2,500,000 shall be approved in writing by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) Lender, such approval to be in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; and
(h) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6Lender's discretion.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advancesincluding, loanswithout limitation, extensions any acquisition of creditall or any substantial portion of the assets, capital contributionsand any acquisition of a business or a product line, purchases and investments being herein called "Investments"of other companies, other than the acquisition of inventory in the ordinary course of business), any PersonPerson (except to the extent permitted by Section 8.7), except:
(a) extensions loans or advances, to the extent, in each case, the Indebtedness created thereby is permitted by subsection 8.1(c);
(i) any Domestic Entity may make investments in any other Domestic Entity (by way of trade credit capital contribution or otherwise), (ii) any Foreign Entity may make investments in, or create, any Foreign Entity directly or indirectly wholly-owned by the Borrower or any other Domestic Entity (by way of capital contribution or otherwise) or make investments permitted by subsection 8.5(b), provided that, in any such case, the requirements of subsection 7.9 are satisfied, (iii) any Foreign Subsidiary of a Domestic Entity may make investments in any Foreign Subsidiary of a Domestic Entity, (iv) any Domestic Entity or Foreign Entity may make investments in any other Domestic Entity or Foreign Entity financed with contributions of equity after the Effective Date directly or indirectly to the entity making such investment from Holdings or the Investors or any Affiliate of the Investors and (v) any Domestic Entity, the Borrower or a Subsidiary of the Borrower may make investments in, or create, any Foreign Entity directly or indirectly wholly-owned by the Borrower (by way of capital contribution or otherwise), provided that (x) the requirements of subsection 7.9 are satisfied and (y) the aggregate amount of all investments in such Foreign Entities (other than pursuant` to clause (iv) of Section 8.1(c)) shall not exceed (I) $3,000,000 plus the sum of any amounts dividended to or distributed to any Domestic Entity or the Borrower by any Foreign Subsidiary of a Domestic Entity (and not retransferred to a Foreign Subsidiary of a Domestic Entity) or dividended or distributed by any Foreign Entity directly or indirectly wholly-owned by the Borrower (that is not a Subsidiary of a Domestic Entity) or the Borrower to a Domestic Entity, less (II) the sum of (1) the aggregate outstanding amount of any Indebtedness of Foreign Entities pursuant to subsection 8.1(c)(iii) and (2) the aggregate amount of any obligations of Foreign Entities guaranteed pursuant to 8.3(c)(iii);
(c) the Borrower and its Subsidiaries may invest in, acquire and hold Cash Equivalents and Investment Grade Securities and (ii) make loans in an aggregate amount at any time outstanding not to exceed $1,000,000 in connection with a sale of assets permitted by subse ction 8.5;
(d) the Borrower and its Subsidiaries may make payroll advances in the ordinary course of business;
(be) Investments the Borrower and its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in Cash Equivalents;
the ordinary course of business and payable or dischargeable in accordance with customary trade terms (cprovided that nothing in this clause (e) any Investment by shall prevent the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) of its Subsidiaries from offering such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000concessionary trade terms, or (y) thereafterfrom receiving such investments, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person the bankruptcy or assets shall be acquired with (I) proceeds reorganization of capital contributed to their respective suppliers or customers or the Borrower expressly for such purpose and/or (II) funds settlement of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection disputes with such Asset Swap that is customers or suppliers arising in addition to the System or Systems transferred by them ordinary course of business, as management deems reasonable in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliancecircumstances);
(f) the Borrower or any of its Subsidiaries may make travel and entertainment advances and relocation and other loans to officers and advances to employees of the Borrower and its Restricted Subsidiaries in an or any such Subsidiary, provided that the aggregate principal amount of all such loans and advances outstanding at any one time, together with the guarantees of such loans and advances made pursuant to subsection 8.3(e), shall not to exceed $10,000,000 5,000,000 at any one time outstanding;; and
(g) Investments the Borrower and its Subsidiaries may make expenditures to acquire all or a portion of the Capital Stock or assets of any Person engaged primarily in one or more businesses in which the Borrower and its Subsidiaries are engaged or directly related thereto, provided that, after giving pro forma effect to any such acquisition and the financing thereof, (i) the aggregate amount of the expenditures in connection with all such acquisitions after the date hereof does not exceed $20,000,000 without the prior written consent of the Required Lenders, (ii) the provisions of subsection 7.9 are satisfied, (iii) the Borrower would be in pro forma compliance with the financial covenants contained in subsections 8.7 and 8.9 for the fiscal period ending on, and as of the end of, the immediately preceding fiscal quarter for which the appropriate financial information is available, provided that the last four fiscal quarters of Consolidated EBITDA (as may be adjusted for identified post acquisition cost savings reasonably agreed to by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary the Administrative Agent whether positive or negative) of each acquired company, business or group of assets during the testing period shall be added (other than any Special Purpose Subsidiaryor subtracted, a the case may be) in the Borrower for purposes of determining compliance with such subsections, and (iv) no Default or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted SubsidiaryEvent of Default has occurred and is continuing or would result therefrom; and
(h) promissory notes the Borrower or any of its Subsidiaries may make investments in, or loans or investments to, joint ventures or other Persons engaged primarily in one or more businesses in which the Borrower and its Subsidiaries are engaged or generally related thereto in an aggregate amount not to exceed $5,000,000 (plus the sum of (i) any amounts dividended or distributed to the Borrower or any Domestic Subsidiary of the Borrower (whichever party is making such investment, loan or expenditure) by such joint venture or other deferred payment obligations that constitute Person and (ii) the net cash proceeds of any issuance of Capital Stock by Holdings to, or any capital contribution to Holdings by, the Investors or their Affiliates (which has not been used to increase the Base Amount of Capital Expenditures permitted under subsection 8.7 for any period); provided that at the time of and after giving effect thereto no Default or Event of Default shall have occurred and be continuing or would result therefrom. For purposes of this subsection 8.6, the payment, or intercompany loans or advances for such purpose, by the Borrower or any Subsidiary of the Borrower of expenses and operating costs of the Borrower or any Subsidiary of the Borrower (x) incurred in the ordinary course of business, provided that, any such payment by the Borrower or any Subsidiary of the Borrower of expenses and operating costs of Foreign Subsidiaries of the Borrower pursuant to this clause (x) shall be promptly repaid by such Foreign Subsidiaries as soon as such Foreign Subsidiaries have funds available to make such repayment and any such repayment shall not increase the amount of investments which may be made in such Foreign Subsidiaries pursuant to paragraph (b)(v) of this section, or (y) incurred in association with the initial establishment, start up and capitalization of the Borrower and its Subsidiaries and the acquisition of assets pursuant to the Asset Sales that are Purchase Agreement (including any adjustment required to reflect an adjustment to the allocation of the purchase price pursuant to the terms of the Asset Purchase Agreement); in each case shall not be considered to be a loan, advance, dividend or other investment, and shall be permitted by subsection 6.6under this Agreement and such payments shall not reduce any permitted amounts to be so made as specified herein.
Appears in 1 contract
Samples: Credit Agreement (Us Unwired Inc)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, except:
: (a) extensions of trade credit in the ordinary course of business;
; (b) Investments investments in Cash Equivalents;
; (c) any Investment the acquisition by the Borrower or any Restricted Subsidiary of its Subsidiaries of assets or capital stock of one or more corporations or other Persons (other than any Special Purpose Subsidiarysuch acquisition pursuant to this clause (c), a "PERMITTED ACQUISITION") in Persons engaged in the telecommunications business or businesses related thereto, provided that so long as (i) each such Person, if it acquisition and all transactions related thereto shall be consummated in accordance with applicable Requirements of Law; (ii) the total consideration for each such acquisition shall not exceed $10,000,000; (iii) each such acquisition shall, in the case of a Permitted Acquisition of capital stock, result in such corporation or Person becoming a Subsidiary, shall become a Restricted Subsidiary unless ; (Aiv) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice delivered to the Administrative Agent, as an Unrestricted Subsidiary Agent a certificate demonstrating in reasonable detail PRO FORMA compliance with Sections 7 and (ii) 8 of this Agreement immediately prior and after giving effect to each such Investmentacquisition, (v) the Borrower is in Pro Forma Compliance;
corporation or Person acquired must have had positive earnings before taxes, interest, depreciation and amortization expense, for the period of four consecutive fiscal quarters then ended; (dvi) any Investment by the Borrower no capital stock or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with any such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets acquisition shall be acquired with subject to any Lien (Iother than Liens permitted by Section 8.3); (vii) proceeds of capital contributed to neither the Borrower expressly for nor any of its Subsidiaries shall assume or incur, directly or indirectly, any Indebtedness or other liability in connection with any such purpose and/or acquisition (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment other than Indebtedness permitted by Section 8.2); and (Bviii) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to any such Investmentacquisition, the Borrower is in Pro Forma Complianceno Default or Event of Default shall have occurred and be continuing;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(fd) loans and advances to employees of the Borrower or its Subsidiaries for travel, entertainment and its Restricted Subsidiaries relocation expenses in the ordinary course of business in an aggregate principal amount outstanding for the Borrower and its Subsidiaries not to exceed $10,000,000 500,000 at any one time outstanding;
(ge) Investments investments by the Borrower in its Restricted wholly owned Subsidiaries and Investments investments by such Subsidiaries in the Borrower and in other wholly owned Subsidiaries; PROVIDED, that investments by the Borrower in its wholly owned Foreign Subsidiaries occurring after the Closing Date shall at no time exceed an aggregate amount of $10,000,000; PROVIDED FURTHER that, except for investments included in such foregoing $10,000,000 aggregate amount, any Restricted Subsidiary investments made by the Borrower in Astor Stag Limited will be made by loans evidenced by the Intercompany Note;
(f) investments by Astor Holdings, Inc. in Astor II and by Astor II in the Borrower and ABI Acquisition 1 plc;
(g) any investment made as a result of the receipt of non-cash consideration from an event described in subsection 4.4(a) that was made pursuant to and in compliance with subsection 8.5;
(h) investments received as part of the settlement of litigation or in satisfaction of extensions of credit to any Person otherwise permitted under this Agreement pursuant to the reorganization, bankruptcy or liquidation of such Person or a good faith settlement of debts with such Person;
(i) any investment not permitted by the foregoing clauses of this subsection 8.8 by the Borrower or its Subsidiaries in a Person in which the Borrower and/or its Subsidiaries owns, or immediately after giving effect to such investment will own, more than 20% of such Person's outstanding Voting Stock (but which Person is not, and will not be, after giving effect to such investment, a Subsidiary) in an aggregate principal amount at any one time not to exceed the Dollar Equivalent of $3,000,000 (excluding investments in Rheochem);
(j) investments by the Borrower to purchase the Voting Stock of Rheochem which it does not own, pursuant to the Shareholders Agreement of Rheochem Manufacturing Company Inc. dated June 30, 1994, among the Borrower, Rheochem, Inc. and Rheochem, as amended, PROVIDED that the Borrower shall have delivered to the Administrative Agent a certificate demonstrating in reasonable detail PRO FORMA compliance with Sections 7 and 8 of this Agreement (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary subsection 8.1(c), except for matters (other than any Special Purpose SubsidiaryPRO FORMA noncompliance with subsection 8.1(a)) in any other Restricted Subsidiarythat can reasonably be expected to be cured within 90 days after such investment); and
(hk) promissory notes investments existing on the Closing Date and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6set forth on Schedule 8.8.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in Cash Equivalents;
(c) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower or its Subsidiaries for travel, entertainment and relocation expenses in the ordinary course of business;
(d) investments by the Borrower in or loans or advances by the Borrower to its Subsidiaries and investments by such Subsidiaries in or loans or advances by such Subsidiaries to the Borrower and in or to other Subsidiaries (including the investment for creation of such Subsidiary); provided, however, that any such investment constituting Indebtedness of any Subsidiary shall be permitted only if such Indebtedness is permitted by subsection 7.2;
(e) so long as no Event of Default has occurred and is continuing or would occur as a result thereof, the Borrower and its Restricted Subsidiaries may purchase securities or any assets constituting a business unit or product line of, or make any other investment in, another Person; provided that any such purchase or investment does not violate any other agreement contained herein;
(f) extensions or renewals of existing investments on substantially identical terms;
(g) investments in the ordinary course of business not to exceed $1,000,000;
(h) investments in Interest Rate Agreements and foreign exchange contracts not to exceed an aggregate notional amount of $600,000,000 entered into for non-speculative purposes;
(i) loans in an aggregate principal amount outstanding not to exceed $10,000,000 500,000 individually and $2,500,000 in the aggregate at any one time outstanding;
(g) Investments by outstanding with terms not to exceed 180 days, which terms may not be extended or refinanced beyond the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiaryoriginal maturity thereof; and
(hj) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6investments made in connection with the Receivables Transfer Program.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any Contingent Obligation for the benefit of, or purchase, stock, bonds, notes, debentures or other securities of or any assets constituting a business unit ofinterest in, or make any other investment in, or acquire assets other than in (such advances, loans, extensions the ordinary course of credit, capital contributions, purchases and investments being herein called "Investments")business from, any Person, except:
(a) extensions the Company may make loans or advances to, or investments in, any Subsidiary Guarantor, and any Subsidiary Guarantor may make loans or advances to, or investments in, the Company or any other Subsidiary Guarantor, to the extent the Indebtedness created thereby is permitted by subsection 8.1(e)(i);
(b) the Company and its Subsidiaries may invest in, acquire and hold Cash Equivalents;
(c) the Company or any of trade credit its Subsidiaries may make travel and entertainment advances and relocation loans in the ordinary course of business to officers and employees of the Company or any such Subsidiary, PROVIDED that the aggregate principal amount of all such loans and advances outstanding at any one time, together with the guarantees of such Loans and advances made pursuant to subsection 8.3(b), shall not exceed $1,000,000;
(d) the Company or any of its Subsidiaries may make payroll advances in the ordinary course of business;
(be) Investments the Company or any of its Subsidiaries may acquire and hold receivables and promissory notes owing to it, if created or acquired in Cash Equivalentsthe ordinary course of business and payable or dischargeable in accordance with customary trade terms (PROVIDED that nothing in this subsection 8.6 shall prevent the Company or any Subsidiary from offering such concessionary trade terms, or from receiving such investments in connection with the bankruptcy or reorganization of their respective suppliers or customers or the settlement of disputes with such customers or suppliers arising in the ordinary course of business, as management deems reasonable in the circumstances);
(cf) any Investment the Company and its Subsidiaries may make investments constituting non-cash consideration in connection with Asset Sales permitted by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided subsection ; PROVIDED that (i) the amount of any such Person, if it investment shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds not exceed 10% of the Borrower aggregate consideration to be received by the Company and its Subsidiaries in respect of such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary Asset Sale and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower amount of any such investment exceeds $20,000,000, the Company shall use its best efforts to (x) cause each such investment to be made in such a form and its Restricted Subsidiaries give consideration on such terms so that such investment can be pledged to the Administrative Agent, for the System or Systems acquired by them in connection with benefit of the Lenders, and (y) pledge such Asset Swap that is in addition investment to the System or Systems transferred by them in exchange thereforAdministrative Agent, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if for the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees benefit of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not Lenders, on terms reasonably satisfactory to exceed $10,000,000 at any one time outstandingthe Administrative Agent;
(g) Investments the Company and its Subsidiaries may make loans or advances to, incur Contingent Obligations for the benefit of, make acquisitions from or of, and make investments in, other Persons, including, without limitation, Indebtedness described in subsection 8.1(e)(ii) and Contingent Obligations described in subsections 8.1(f); PROVIDED that the aggregate amount of the consideration paid or invested and the amounts loaned, advanced or guaranteed by the Borrower Company and its Subsidiaries in its Restricted Subsidiaries and Investments all such transactions after the Closing Date (net, in the case of loans, advances or investments, of any repayments or return of capital in respect thereof actually received in cash by any Restricted the Company or such Subsidiary (other than net of applicable taxes) after the Closing Date), when added to the amount of any Special Purpose Subsidiary) transfers or dispositions of assets described in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) proviso to subsection 8.5(c), does not exceed an aggregate amount of $10,000,000 in any other Restricted Subsidiarysingle transaction or series of related transactions or $20,000,000 in any fiscal year of the Company; and
(h) promissory notes the Company may make a loan to Holdings on the Closing Date in connection with the Refinancing, evidenced by the Holdings Note and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6in an aggregate principal amount not to exceed $100,000,000.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting all or a material part of a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in Cash Equivalents;
(c) any Investment Guarantee Obligations permitted by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma ComplianceSection 7.2;
(d) any Investment by loans and advances to employees, directors and officers of the Borrower or any Restricted Subsidiary its Subsidiaries in the ordinary course of business (other than any Special Purpose Subsidiaryincluding, without limitation, for travel, entertainment and relocation expenses) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the an aggregate amount of such Investments then held by for the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 1,500,000 at any one time outstanding;
(ge) Investments investments made by the Borrower or any of its Subsidiaries with the proceeds of (x) any Recovery Event or any event which would be a Recovery Event but for the parenthetical clauses in its Restricted the definition thereof or (y) any Disposition of Property pursuant to Section 7.5(e); provided, that any such Investment with respect to clause (y) above may only be made if (i) no Default or Event of Default shall then be continuing or result therefrom, (ii) the amount of cash consideration paid in connection with the acquisition does not exceed the Net Cash Proceeds received from the sale of such Non-Core Assets, (iii) the representations and warranties set forth in Section 4 shall be true and correct after giving effect to the acquisition, (iv) no consents or approvals shall be needed for such acquisition (other than those that have been obtained on or prior to the date of such acquisition), (v) the Borrower or such Subsidiary uses such Net Cash Proceeds to acquire 100% of the Capital Stock of one or more entities engaged in the business of manufacturing, designing, renting and/or selling cameras, lenses, lighting, lighting grips, power distribution, generation and related transportation equipment and/or cranes and remote camera heads or components of or equipment related to any of the foregoing, or to acquire any such business or assets, whether or not such business or assets are located within the United States (collectively, the "Core Assets"), (vi) the Person that owns such Core Assets shall have become a Subsidiary Guarantor hereunder and (vii) the Borrower or Subsidiary that owns the Capital Stock issued by the Person that owns such Core Assets shall have pledged the Capital Stock held by the Borrower or Subsidiary, as applicable.
(i) any Subsidiary may make investments in the Borrower (by way of capital contribution loan, or otherwise), (ii) the Borrower and any Subsidiary may make investments in, or create, any Subsidiary Guarantor other than EFILM (by way of capital contribution, loan or otherwise), provided that, in any such case, the requirements of Section 6.9 are satisfied, (iii) the Borrower, any Subsidiary Guarantor, or any Specified Foreign Subsidiary may make investments in, or create, any Foreign Subsidiary (by way of capital contribution, loan or otherwise); provided, that (x) the requirements of Section 6.9 are satisfied and (y) the aggregate amount of all investments in such Foreign Subsidiaries that are not Indebtedness and Investments by that have not been repaid in cash to the Borrower, any Restricted Subsidiary Guarantor or any Specified Foreign Subsidiary (whichever such Person made such investment) shall not exceed (I) $15,000,000 less (II) the aggregate principal amount of any Indebtedness of any Foreign Subsidiary at any such time outstanding in accordance with Section 7.2(b)(iii) and (iv) any Foreign Subsidiary (other than any Special Purpose Specified Foreign Subsidiary) may make investments in, or create, any Foreign Subsidiary (by way of capital contribution, loan or otherwise);
(g) investments by the Borrower and its Subsidiaries in the ordinary course of business in accounts, contract rights and chattel paper (as defined in the Uniform Commercial Code), put and call foreign exchange options and foreign exchange forwards and futures to the extent necessary to hedge foreign exchange exposures and notes receivable, and in Rate Hedging Agreements;
(h) the Borrower and its Subsidiaries may acquire and own investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers or in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising out of the ordinary course of business; provided, that the Borrower and its Subsidiaries have paid no new consideration (other than the forgiveness of Indebtedness or other obligations) therefor;
(i) so long as no Default or Event of Default shall have occurred and be continuing, or would result therefrom, additional capital contributions to or equity investments by Las Palmas in EFILM to fund any Earnout Payments;
(j) other investments (by way of capital contribution, loan or otherwise) by the Borrower or any of its Subsidiaries (that have not been repaid in cash to the Borrower or such Subsidiary) in the Borrower or EFILM (and, without duplication, by any Restricted Subsidiary (other than any Special Purpose Subsidiary) EFILM in any other Restricted SubsidiaryPerson) or DHD Ventures, which (x) without duplication, when added together with the aggregate principal amount of Indebtedness incurred pursuant to Section 7.2(i)(A) and then outstanding, do not exceed $7,750,000 at any one time (such investments to be measured by their fair market value at the time of the investment) and (y) shall not exceed at the time such investment is made an aggregate amount of Investments, after taking into account all other investments made to EFILM by its equity holders, that is proportionate to the Borrower's equity interest in EFILM at such time;
(k) investments resulting from the exercise of rights contemplated by Section 7.3(q); and
(hl) promissory notes and other deferred payment obligations that constitute proceeds investments made by Panavision International L.P. in the Capital Stock of Asset Sales that are permitted by subsection 6.6.Panavision Europe, Ltd. as a result of the conversion of approximately $12,500,000 of Indebtedness of Panavision Europe, Ltd. owed to Panavision International, L.P.
Appears in 1 contract
Samples: Credit Agreement (Panavision Inc)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advanceseach, loans, extensions of credit, capital contributions, purchases and investments being herein called an "InvestmentsInvestment"), ) any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in Cash Equivalents;
(c) purchases of shares of the Capital Stock of any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons Person engaged in the telecommunications commercial radio business (which shall be deemed to include, without limitation, programming, production and distribution) or businesses any other business related theretoto the foregoing or purchases of the assets constituting all or any portion of any such business owned by any other Person, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal prior to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investmentpurchase, there shall exist no Default or Event of Default and the Borrower shall have delivered a certificate (with such supporting detail and calculations as may be reasonably requested by the Administrative Agent) from a Responsible Officer so stating and provided further, that any such Person which shall constitute a Subsidiary following such Investment shall be a Restricted Subsidiary or, as the case may be, the Borrower is in Pro Forma Complianceassets so purchased shall be owned by a Restricted Subsidiary;
(d) any Investment by loans and advances to officers and employees of the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to for travel, entertainment and relocation expenses and other purposes in the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% ordinary course of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliancebusiness;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstanding;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any such Restricted Subsidiary (other than any Special Purpose Subsidiary) Subsidiaries in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) and in any other Restricted SubsidiarySubsidiaries;
(f) Investments set forth on Schedule 6.8; and
(hg) promissory notes (i) Investments in Unrestricted Subsidiaries as of the Second Restatement Effective Date, (ii) Investments in Unrestricted Subsidiaries the consideration for which shall consist solely of shares of the Capital Stock of the Borrower and other deferred payment obligations that constitute proceeds (iii) additional Investments in Unrestricted Subsidiaries during the period from and including September 30, 1999 to and including the Termination Date in an aggregate amount which is not in excess of Asset Sales that are permitted by subsection 6.6the Unrestricted Investment Basket.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make Quiksilver shall not, and shall not permit any of its Subsidiaries to, make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advancesany of the foregoing, loans, extensions of credit, capital contributions, purchases and investments being herein called an "Investmentsinvestment"), any Person, exceptor otherwise make any Permitted Acquisition, except for:
(a) Quiksilver's ownership interests in its current Subsidiaries;
(b) investments in marketable securities, liquid investments and other financial instruments that are acquired for investment purposes and may be readily sold or otherwise liquidated, that have a value which may be readily established and which are investment grade;
(c) extensions of trade credit in the ordinary course of business;
(bd) Investments investments in Cash Equivalents;
(c) any Investment by the Borrower form of Permitted Acquisitions or any Restricted Subsidiary (other than any Special Purpose Subsidiary) investments in Persons engaged or businesses, in each case, in the telecommunications same line of business or businesses related theretoas that described in Section 3.18, provided that (i) no Default or Event of Default has occurred and is continuing or would result from the consummation of such PersonPermitted Acquisition or other investment, if it shall be a Subsidiary(ii) such Permitted Acquisition is not opposed by the Person to be, shall become a Restricted Subsidiary unless or whose business is to be, acquired and (iii) in the case of any Permitted Acquisition or other investment by Quiksilver or any of its Domestic Subsidiaries (A) such Person with respect to Permitted Acquisitions or assets shall be acquired with (I) proceeds other investments involving aggregate cash Consideration in excess of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect theretoUS$5,000,000, the Special Payment Condition shall be satisfied, provided that the US Borrower shall have made delivered to the US Administrative Agent a Pro Rata Payment Offer in Compliance Certificate showing pro forma calculations, as of the most recent quarter-end for which a Compliance Certificate has been provided by the US Borrower, and as of each of the three subsequent quarter-ends and on an amount equal to annual basis, thereafter through the Revolving Loan Commitment Expiration Date, assuming such Investment and Permitted Acquisition had been consummated or such other investment had been made, as applicable, (B) the Borrower designates such Personaggregate cash Consideration therefor shall not exceed US$10,000,000 annually, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged US$50,000,000 in the telecommunications business or businesses related thereto aggregate, during the term of this Agreement (provided, that no restriction on the cash Consideration for Permitted Acquisitions shall be applicable if, after giving pro forma effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does average daily Availability was not exceed less than (x) at any time prior to if the date on which the Special Payment Condition shall have Guarantee Date has not yet occurred, $50,000,000US$25,000,000, or (y) thereafteron and after the Guarantee Date, 5% US$40,000,000, for any period of then Total Capitalization; provided that thirty consecutive days during the 12-month period ending on the date on which such Permitted Acquisition is to be consummated) and (iC) such Personwith respect to any Permitted Acquisition, the US Administrative Agent or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Canadian Administrative Agent, an Unrestricted Subsidiary as the case may be, shall have received, reviewed and approved all documents requested by the US Administrative Agent or the Canadian Administrative Agent, as the case may be, to insure that the Lenders have a first-priority security interest in, and assignment of, all personal property assets and interests acquired (ii) immediately prior other than Intellectual Property Rights), to the extent that a security interest in such assets and after giving effect to such Investmentinterests is required by the terms of this Agreement, the Borrower is in Pro Forma Complianceincluding consents of third parties if reasonably requested;
(e) any Investment arising from investments existing on the acquisition by the Borrower date hereof and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliancelisted on Schedule 6.7;
(f) loans and advances to officers and employees of the Borrower Quiksilver or any Subsidiary, provided that such loans and its Restricted Subsidiaries advances do not exceed US$5,000,000 in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstanding;
; provided, however, that an individual's use of a cashless exercise procedure to pay the exercise price and required tax withholding (g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiaryor either of them) in connection with his exercise of a compensatory option to purchase stock issued by Quiksilver shall not give rise to a loan or advance for the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; and
(h) promissory notes and other deferred payment obligations that constitute proceeds purposes of Asset Sales that are permitted by subsection 6.6.this section 6.7
Appears in 1 contract
Samples: Credit Agreement (Quiksilver Inc)
Limitation on Investments, Loans and Advances. Make No Guarantor shall purchase, hold or acquire (including pursuant to any advance, loan, extension of credit or merger with any Person that was not a wholly-owned Subsidiary prior to such merger) any capital contribution to, or purchase any stock, bonds, notes, debentures evidences of Indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any assets constituting a business unit loans or advances to, Guarantee any obligations of, or make or permit to exist any investment or any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions) any assets of any other Person constituting a business unit, except:
(a) extensions of trade credit in the ordinary course of businessPermitted Investments;
(b) Investments in Cash Equivalentsloans or advances made to any Subsidiary (or any special-purpose entity created or sponsored by the Company or a Subsidiary) or made by any Subsidiary (or any special-purpose entity created or sponsored by the Company or a Subsidiary) to the Company or any other Subsidiary (or any special-purpose entity created or sponsored by the Company or a Subsidiary);
(c) any Investment Guarantees permitted by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma ComplianceSection 6.01;
(d) any Investment by the Borrower or any Restricted Subsidiary (Specified Transactions, other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that than
(i) Specified Transactions with respect to which the Total Non-Stock Consideration paid or payable by such Person, or Guarantor exceeds (i) $50,000,000 in the Person which shall become aggregate in respect of Specified Transactions that occur during the owner period from the date hereof until the end of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary fiscal year 2010 and (ii) immediately prior $200,000,000 in the aggregate per fiscal year in respect of Specified Transactions that occur during any fiscal year after fiscal year 2010; provided, however, that a Guarantor may enter into a Specified Transaction regardless of the value of Total Non-Stock Consideration so long as such Specified Transaction involves no unaffiliated third parties and after giving effect involves only such Guarantor and one or more Subsidiaries; and
(ii) Specified Transactions with respect to which the Total Stock Consideration paid or payable by such Investment, Guarantor exceeds $750,000,000 in the Borrower is in Pro Forma Compliance;aggregate per fiscal year; and
(e) any Investment arising from the acquisition by the Borrower in accordance with and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) pursuant to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees terms of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not indentures governing the Indenture Indebtedness (such as a conversion of debt to exceed $10,000,000 at any one time outstanding;
(g) Investments equity securities or cash settlement thereof by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower way of repaying, prepaying, or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; and
(h) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6purchasing Indebtedness thereunder).
Appears in 1 contract
Samples: Letter of Credit Facility Agreement (Sunpower Corp)
Limitation on Investments, Loans and Advances. Make Make, and shall not permit any Subsidiary to make, any advance, loan, extension of credit (excluding Guarantee Obligations but including any payment by a guarantor thereunder) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, Person except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments of the Borrower or any Subsidiary existing on the date hereof in any Subsidiary;
(c) investments of the Borrower or any Subsidiary after the date hereof that are:
(i) investments by the Borrower in any Subsidiary or
(ii) acquisitions of the capital stock of, or assets constituting a business unit of, another Person, provided that, after giving effect to any such acquisition, the Borrower shall be in pro forma compliance with Section 6.1 and no Default or Event or Default shall have occurred and be continuing or shall result therefrom, provided, that the aggregate amount of investments made pursuant to clause (i) plus the aggregate consideration for all acquisitions (including assumed debt but excluding any Capital Stock (other than Mandatory Redeemable Stock) of the Borrower or any Subsidiary issued as consideration for such acquisition) made pursuant to clause (ii) shall at no time exceed during any fiscal year $125,000,000 per annum (excluding any dividends paid in kind on any preferred Capital Stock, other than Mandatory Redeemable Stock);
(d) the Borrower and its Subsidiaries may invest in, acquire and hold Cash Equivalents;
(ce) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged of its Subsidiaries may make travel and entertainment advances, relocation loans and payroll advances in the telecommunications ordinary course of business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds to officers and employees of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose such Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees investments of the Borrower or any Subsidiary existing on the date hereof and its Restricted Subsidiaries described in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstandingSchedule 6.8;
(g) Investments by the Borrower investments in its Restricted Subsidiaries obligations arising out of bankruptcy of customers and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiarysuppliers; and
(h) promissory notes and other deferred payment obligations that constitute proceeds investments arising out of Asset Sales that are non-cash consideration received in connection with sales of assets as permitted by subsection 6.6Section 6.7.
Appears in 1 contract
Samples: Credit Agreement (Northwestern Corp)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit (including the incurrence or assumption of any Guarantee Obligation) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment investment, in cash or by transfer of assets or property, in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments"each an “Investment”), any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in cash and Cash Equivalents;
(c) any Investment by Investments existing on the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) Effective Date and described in Persons engaged in Schedule 8.8(c), setting forth the telecommunications business or businesses related thereto, provided that (i) respective amounts of such Person, if it shall be Investments as of a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliancerecent date;
(d) any Investment by the Borrower or any Restricted Subsidiary (Investments in notes receivable and other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower instruments and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired securities obtained in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment any Permitted Receivables Transaction and (B) the Borrower designates such Person, Bond Prepayments permitted by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliancesubsection 8.13(a);
(e) loans and advances to officers, directors or employees of Holding or any Investment arising from of its Subsidiaries (i) in the acquisition ordinary course of business for travel and entertainment expenses, (ii) existing on the Effective Date and described in Schedule 8.8(c), (iii) made after the Effective Date for relocation expenses in the ordinary course of business, (iv) made for other purposes in an aggregate amount (as to Holding and all of its Subsidiaries) of up to $10,000,000 outstanding at any time and (v) relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity;
(f) (i) Investments by the Borrower Company in its Wholly Owned Subsidiaries (other than any Receivables Subsidiary) and Subsidiary Guarantors and by such Wholly Owned Subsidiaries and Subsidiary Guarantors in the Company, Wholly Owned Subsidiaries of the Company (other than any Receivables Subsidiary) and Subsidiary Guarantors (subject, in the case of any Investments by the Company or any Guarantor in a Subsidiary that is not a Guarantor, to the limitations set forth in subsection 8.6(f)) and/or (ii) Investments in Intermediate Holding in amounts and for purposes for which dividends are permitted under subsection 8.7;
(g) acquisitions expressly permitted by subsection 8.9 and, to the extent otherwise restricted by this subsection 8.8, the Partnership Transaction;
(h) Investments of the Company and its Restricted Subsidiaries under Interest Rate Protection Agreements or under Permitted Hedging Arrangements;
(i) Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business or otherwise described in subsection 8.3(c), (d) or (f);
(j) Investments representing non-cash consideration received by the Company or any System or Systems of its Subsidiaries in connection with any Asset SwapSale, provided that (i) to in the extent that case of any Asset Sale permitted under subsection 8.6(i), such non-cash consideration constitutes not more than 25% of the Borrower and its Restricted Subsidiaries give aggregate consideration for the System or Systems acquired by them received in connection with such Asset Swap that Sale and any such non-cash consideration received by the Company or any of its Domestic Subsidiaries is in addition pledged to the System Administrative Agent for the benefit of the Secured Parties pursuant to the Security Documents (except to the extent occurring during any Collateral Release Period);
(k) any Investment by the Company and its Subsidiaries in a Receivables Subsidiary which, in the judgment of the Company, is prudent and reasonably necessary in connection with, or Systems transferred otherwise required by them the terms of, any Permitted Securitization Transaction;
(l) Investments by the Company or any of its Subsidiaries in exchange therefora Person in connection with a joint venture or similar arrangement (including, without limitation, Foreign Subsidiaries) in an aggregate amount not to exceed at any time (together with any Guarantee Obligations permitted by subsection 8.2(v)) an amount equal to $300,000,000; provided that the Company or such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if Subsidiary complies with the provisions of subsection 6.6(e7.9(b) and 6.8(c(c) shall be complied hereof, if applicable, with respect to such ownership interest;
(m) Investments in industrial development or revenue bonds or similar obligations secured by assets leased to and operated by the Company or any of its Subsidiaries that were issued in connection therewith with the financing of such assets, so long as the Company or any such Subsidiary may obtain title to such assets at any time by optionally canceling such bonds or obligations, paying a nominal fee and terminating such financing transaction;
(n) Investments representing evidences of Indebtedness, securities or other property received from another Person by the Company or any of its Subsidiaries in connection with any bankruptcy proceeding or other reorganization of such other Person or as a result of foreclosure, perfection or enforcement of any Lien or exchange for evidences of Indebtedness, securities or other property of such other Person held by the Company or any of its Subsidiaries; provided that any such securities or other property received by the Company or any of its Domestic Subsidiaries (other than a Receivables Subsidiary or a Subsidiary of a Foreign Subsidiary) is pledged to the Administrative Agent for the benefit of the Secured Parties pursuant to the Security Documents; and
(o) Investments not otherwise permitted by the preceding clauses of this subsection 8.8 not to exceed in the aggregate at any time the greater of (i) $150,000,000 and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees 10% of the Borrower consolidated total assets of the Company and its Restricted Subsidiaries shown on the consolidated balance sheet of the Company and its Subsidiaries as of the end of the most recent fiscal quarter for which an Adjustment Date has occurred, determined on a consolidated basis in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstanding;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; and
(h) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6accordance with GAAP.
Appears in 1 contract
Samples: Credit Agreement (Graphic Packaging International, LLC)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting all or a material part of a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in Cash Equivalents;
(c) any Investment Guarantee Obligations permitted by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma ComplianceSection 7.2;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of Holdings, the Borrower or its Subsidiaries in the ordinary course of business (including, without limitation, for travel, entertainment and relocation expenses) in an aggregate amount for Holdings, the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 500,000 at any one time outstanding;
(ge) Investments advances by the Borrower to Holdings on the Closing Date in an aggregate amount not to exceed the amount, if any, by which $36,500,000 exceeds the aggregate amount of any dividends paid by the Borrower pursuant to Section 7.6(e), such advances to be used by Holdings solely to finance the Stock Repurchase and related fees and expenses;
(f) investments made by the Borrower or any of its Restricted Subsidiaries and Investments with the proceeds of any Reinvestment Deferred Amount;
(g) investments by Holdings, the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) of its Subsidiaries in the Borrower or by any Restricted Person that, prior to such investment, is a Wholly Owned Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted SubsidiaryGuarantor; and
(h) promissory notes acquisitions by the Borrower or any of its Subsidiaries of the Capital Stock of, or assets of, entities engaged in similar lines of business as the Borrower and other deferred payment obligations its Subsidiaries on the Closing Date, PROVIDED that constitute proceeds (i) the aggregate purchase price for all such acquisitions occurring after the Closing Date shall not exceed $25,000,000, (ii) [INTENTIONALLY OMITTED], (iii) no Default or Event of Asset Sales that are Default shall have occurred or be continuing after giving effect to any such acquisition, (iv) no Indebtedness shall be assumed by the Borrower or any of its Subsidiaries in connection with any such acquisition except to the extent otherwise permitted pursuant to this Agreement and (v) the Borrower shall be in PRO FORMA compliance with the covenants set forth in Section 7.1 after giving effect to any such acquisition;
(i) investments existing on the Closing Date and listed on Schedule 7.8;
(j) investments and advances made by the Borrower in Holdings to the extent permitted by subsection 6.6Section 7.6(b), (c), (d) or (e); and
(k) other investments in an aggregate amount not to exceed $5 million at any one time outstanding.
Appears in 1 contract
Samples: Credit Agreement (Nebraska Book Co)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any Contingent Obligation for the benefit of, or purchase, stock, bonds, notes, debentures or other securities of or any assets constituting a business unit ofinterest in, or make any other investment in, or acquire assets other than in (such advances, loans, extensions the ordinary course of credit, capital contributions, purchases and investments being herein called "Investments")business from, any Person, except:
(a) extensions the Company may make loans or advances to, or investments in, any Subsidiary Guarantor, and any Subsidiary Guarantor may make loans or advances to, or investments in, the Company or any other Subsidiary Guarantor, to the extent the Indebtedness created thereby is permitted by subsection 8.1(e)(i);
(b) the Company and its Subsidiaries may invest in, acquire and hold Cash Equivalents;
(c) the Company or any of trade credit its Subsidiaries may make travel and entertainment advances and relocation loans in the ordinary course of business to officers and employees of the Company or any such Subsidiary;
(d) the Company or any of its Subsidiaries may make payroll advances in the ordinary course of business;
(be) Investments the Company or any of its Subsidiaries may acquire and hold receivables and promissory notes owing to it, if created or acquired in Cash Equivalentsthe ordinary course of business and payable or dischargeable in accordance with customary trade terms (provided that nothing in this subsection 8.6 shall prevent the Company or any Subsidiary from offering such concessionary trade terms, or from receiving such investments in connection with the bankruptcy or reorganization of their respective suppliers or customers or the settlement of disputes with such customers or suppliers arising in the ordinary course of business, as management deems reasonable in the circumstances);
(cf) the Company and its Subsidiaries may make investments constituting non-cash consideration in connection with Asset Sales permitted by subsection 8.5; provided that (i) the amount of any Investment such investment shall not exceed 10% of the aggregate consideration to be received by the Borrower Company and its Subsidiaries in respect of such Asset Sale and (ii) to the extent that the amount of any such investment exceeds $20,000,000, the Company shall use its best efforts to (x) cause each such investment to be made in such a form and on such terms so that such investment can be pledged to the Collateral Agent, for the benefit of the Lenders, and (y) pledge such investment to the Collateral Agent, for the benefit of the Lenders, on terms reasonably satisfactory to the Administrative Agent;
(g) the Company and its Subsidiaries may make loans or advances to, incur Contingent Obligations for the benefit of, make acquisitions from or of, and make investments in, other Persons, including, without limitation, Indebtedness described in subsection 8.1(e)(ii) and Contingent Obligations described in subsection 8.1(f); provided that (i) the aggregate amount of the consideration paid or invested and the amounts loaned, advanced or guaranteed by the Company and its Subsidiaries in all such transactions after the Closing Date (net, in the case of loans, advances or investments, of any repayments or return of capital in respect thereof actually received in cash by the Company or such Subsidiary (net of applicable taxes) after the Closing Date), when added to the amount of any transfers or dispositions of assets described in the proviso to subsection 8.5(c), does not exceed an aggregate amount of $50,000,000 in any fiscal year of the Company and (ii) no Default or Event of Default has occurred or would occur after giving effect thereto;
(h) the loan made by the Company to Holdings on the 1996 Closing Date in connection with the 1996 Refinancing, evidenced by the Holdings Note and in an aggregate principal amount of $100,000,000;
(i) the Company or any Restricted Subsidiary of its Subsidiaries may make loans and advances to, and investments in, a limited liability company formed with GATX Capital Corporation as the initial majority equity investor for the purpose of acquiring, leasing and selling airplanes manufactured by the Company and its Subsidiaries, provided that the aggregate amount of such loans, advances and investments at any one time outstanding shall not exceed (after giving effect to repayments, distributions, dividends and other than payments in respect thereof) $40,000,000; and
(j) to the extent that the Company or any Special Purpose Subsidiaryof its Subsidiaries has not otherwise made an acquisition pursuant to Section 8.6(j) of the 1996 Credit Agreement, the Company or any of its Subsidiaries may acquire, in Persons engaged in one acquisition only, the telecommunications capital stock or all or substantially all of the assets of another Person or any business unit or businesses related theretoline of business of another Person, provided that (i) such Person, if it shall be business unit or line of business is engaged in a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds business of the Borrower in such amount thatsame general type as the Company and its Subsidiaries are engaged in, after giving effect or a business related thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, acquisition the Borrower Company is in Pro Forma Compliance;
compliance on a pro forma basis as at the end of the most recent fiscal quarter for which financial statements have been furnished to the Lenders with the requirements of subsections 8.8 and 8.10 and no Default or Event of Default has occurred and is continuing and (diii) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount purchase price of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed acquisition (x) at including any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, assumed or (y) thereafter, 5% continuing indebtedness of then Total Capitalization; provided that (i) such Person, business unit or line of business ("Permitted Acquisition Indebtedness"), but excluding any portion of such purchase price paid in common stock of Holdings), is not greater than $300,000,000 (the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless acquisition under this paragraph (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect theretoj), the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstanding;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; and
(h) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6"Permitted Acquisition").
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of any Person or consummate any assets constituting a business unit of, or make any other investment in Acquisition (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called an "InvestmentsInvestment"), any Person, exceptexcept for:
(a) extensions of trade credit and prepaid expenses made in the ordinary course of business;
(b) Investments in Cash Equivalents;
; provided that (cA) any Investment by the Borrower or any Restricted Subsidiary maximum amount of cash and Cash Equivalents held in accounts (other than any Special Purpose SubsidiaryConsignment Inventory Accounts) in Persons engaged in over which the telecommunications business or businesses related thereto, provided that (i) such Person, if it Administrative Agent does not have a valid and perfected Lien shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment not exceed $15,000,000 and (B) the Borrower designates such Person, by notice maximum amount of cash and Cash Equivalents held in Consignment Inventory Accounts shall not exceed the amounts due to suppliers of Consignment Inventory consisting of (i) the Administrative Agent, as an Unrestricted Subsidiary and cost of the Consignment Inventory actually sold plus (ii) immediately prior other expenses due and after giving effect payable to such Investment, the Borrower is in Pro Forma Compliancesuppliers of Consignment Inventory;
(di) any Investment by loans to officers of the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower or its Subsidiaries for travel, entertainment and relocation expenses in the ordinary course of business, and (iii) loans by the Borrower to its employees (other than to officers of the Borrower or any Subsidiary) in connection with management incentive plans, provided that the aggregate outstanding principal amount of all such loans and advances shall not exceed $5,000,000 at any time;
(d) Investments by the Borrower in Subsidiary Guarantors and Investments by Restricted Subsidiaries in an the Borrower and in Subsidiary Guarantors;
(e) Investments not otherwise permitted hereunder by the Borrower and Restricted Subsidiaries in Subsidiaries that are not Subsidiary Guarantors, provided that, after giving effect to such Investments, the aggregate principal then outstanding amount outstanding of all such Investments (including Investments in such Subsidiaries in the nature of sales and transfers of assets (including, pursuant to a transaction permitted under subsection 8.4) for less than fair market value and Guarantee Obligations pursuant to subsection 8.2(e)) made subsequent to the Effective Date pursuant to this paragraph (e), together with Guarantee Obligations permitted pursuant to subsection 8.2(e), shall not to exceed $10,000,000 at 10,000,000, provided, further, that the conversion of any one time outstandingIndebtedness owed to the Borrower or any Restricted Subsidiary by any Subsidiary into equity of such Subsidiary shall not constitute an additional Investment in such Subsidiary by the Borrower or such Restricted Subsidiary for purposes of the limitation contained in the immediately preceding proviso;
(f) Investments received in connection with the creation and collection of accounts receivable in the ordinary course of business;
(g) Investments by the Borrower received as consideration in its Restricted connection with any Asset Sale or other disposition of assets permitted hereunder;
(h) Investments not otherwise permitted hereunder in Credit Card Subsidiaries and in an amount, together with Guaranteed Obligations permitted pursuant to subsection 8.2(e), not to exceed $25,000,000 outstanding at any time;
(i) Investments by any Restricted Subsidiary Credit Card Subsidiaries in connection with the Credit Card Program;
(other than any Special Purpose Subsidiaryj) loans and advances to suppliers in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) ordinary course of business consistent with past practice but in any other Restricted Subsidiaryevent not in excess of an outstanding principal amount of $500,000;
(k) purchases of Accounts, credit card receivables and related assets by Credit Card Subsidiaries in connection with the Credit Card Program; and
(hl) promissory notes Acquisitions and other deferred payment obligations that constitute proceeds Investments not otherwise permitted hereunder made by the Borrower or any of Asset Sales that are permitted by subsection 6.6its Restricted Subsidiaries, provided that, after giving effect thereto, (i) the aggregate outstanding amount of all such Investments (other than Acquisitions) made at any time after the Effective Date, shall not exceed the sum of $2,000,000 and (ii) the aggregate outstanding amount of all such Acquisitions (including assumed Indebtedness and the fair market value of Capital Stock issued) and other Investments made at any time after the Effective Date shall not exceed the sum of $20,000,000.
Appears in 1 contract
Samples: Post Petition Credit Agreement (Service Merchandise Co Inc)
Limitation on Investments, Loans and Advances. Make Make, and shall not permit any Subsidiary to make, any advance, loan, extension of credit (excluding Guarantee Obligations but including any payment by a guarantor thereunder) or capital contribution to, or purchase any stockCapital Stock, bonds, notes, debentures or other securities of, or purchase all or a material part of or any assets constituting a business unit or line of business of (or all or substantially all the assets of), or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any PersonPerson (any of the foregoing, an “Investment”), except:
(ai) (A) extensions of trade credit in the ordinary course of businessbusiness and (B) Investments (including reinvestments thereof by any intermediate Subsidiary) to the extent the ultimate proceeds thereof are applied to maintenance capital expenditures in the ordinary course of business and required to comply with Section 5.01(e) for merchant generation plants of any Wholly-Owned Subsidiary;
(bii) Investments [Intentionally Omitted];
(iii) the Borrower may acquire all or a material part of any domestic regulated business, provided that the aggregate principal amount of Debt incurred or assumed by the Borrower and its Subsidiaries in connection with such acquisition (together with the aggregate principal amount of Indebtedness of such acquired Person) shall not exceed fifty percent (50%) of the lesser of the fair value or cost of such acquired assets (and, to the extent such Debt is incurred in connection with such acquisition or in contemplation of such acquisition, such Debt shall not have a scheduled maturity, or require any principal payment prior to six months after the Maturity Date);
(iv) the Borrower and its Subsidiaries may invest in, acquire and hold Cash Equivalents;
(cv) the Borrower or any Investment of its Subsidiaries may make travel and entertainment advances, relocation loans and payroll advances in the ordinary course of business to officers and employees of the Borrower or any such Subsidiary;
(vi) Investments of the Borrower or any Subsidiary existing on the date hereof and the receipt of any additional securities constituting payments in kind on such existing Investments;
(vii) Investments in obligations arising out of bankruptcy of customers and suppliers;
(viii) subject to 5.02(g), Investments consisting of non-cash consideration received in connection with sales of assets;
(ix) Investments in a Wholly-Owned Subsidiary of Borrower in furtherance of the winding down or exiting of the operations of the unregulated merchant energy business or operations of Borrower and its Subsidiaries;
(x) in connection with cash management and tax efficient financing of the Borrower and its Subsidiaries in the ordinary course of business consistent with past practice, Investments by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfiedBorrower or any Subsidiary of the Borrower, provided that the Borrower proceeds thereof shall have made a Pro Rata Payment Offer in an amount equal not be used to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliancefinance any capital expenditure;
(dxi) any Investment by other Investments of the Borrower or any Restricted Subsidiary (other after the date hereof of not more than any Special Purpose Subsidiary) in Persons not engaged $30,000,000 in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstanding;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiaryaggregate; and
(hxii) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6Investments the Borrower or any Subsidiary is contractually obligated to make on the date hereof.
Appears in 1 contract
Samples: Credit Agreement (Aquila Inc)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, except:
(a) the Acquisition;
(b) extensions of trade credit in the ordinary course of business;
(bc) Investments investments in Cash Equivalents;
(cd) any Investment loans or advances to officers or employees to pay relocation costs of such officers or employees in connection with their employment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma ComplianceSubsidiaries;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System notes, securities or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give other instruments received as consideration for any sale of assets permitted hereunder in an aggregate amount not to exceed $500,000 in any fiscal year of the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma ComplianceBorrower;
(f) loans any notes, securities or other instruments received as part of the settlement of litigation or in satisfaction of extensions of credit to any Person otherwise permitted hereunder pursuant to the reorganization, bankruptcy or liquidation of such Person;
(i) investments by the Borrower in its Subsidiaries which are parties to the Guarantee and advances Collateral Agreement and the Capital Stock of which is pledged to employees the Agent to secure the Borrower's obligations hereunder and under the other Loan Documents, (ii) investments by Subsidiaries of the Borrower which are not parties to the Guarantee and its Restricted Collateral Agreement in other Subsidiaries of the Borrower, (iii) investments by Subsidiaries of the Borrower which are parties to the Guarantee and Collateral Agreement in the Borrower and in other Subsidiaries of the Borrower which are parties to the Guarantee and Collateral Agreement and (iv) investments by the Borrower or Subsidiaries of the Borrower which are parties to the Guarantee and Collateral Agreement in Canadian Subsidiaries or U.K. Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstandingoutstanding (determined on a cumulative basis from and after the Closing Date, but giving effect to reductions of amounts outstanding by the amount of capital in respect thereof returned in cash to the Borrower or the applicable Subsidiary from time to time); PROVIDED that no such investments shall be permitted in connection with an acquisition not otherwise permitted under subsection 8.10(j);
(gh) Investments payroll advances in the ordinary course of business;
(i) travel and entertainment advances and other loans to officers and employees, PROVIDED that the aggregate principal amount of all such loans and advances outstanding at any one time shall not exceed $100,000;
(j) acquisitions by the Borrower and its Subsidiaries, of assets or Capital Stock of one or more corporations or other Persons so long as (i) each such acquisition and all transactions related thereto shall be consummated in its Restricted Subsidiaries accordance with applicable Requirements of Law; (ii) each such acquisition, in the case of an acquisition of Capital Stock, shall result in such corporation or Person becoming a Subsidiary; (iii) after giving effect to any such acquisition, no Default or Event of Default shall have occurred and Investments by any Restricted Subsidiary be continuing; (other than any Special Purpose Subsidiaryiv) the Borrower shall have delivered to the Agent a certificate demonstrating that the requirements of subsection 8.1 would be satisfied on a pro forma basis as at the end of the most recently ended fiscal quarter of the Borrower with respect to which financial statements have been delivered pursuant to subsection 7.1 if each such acquisition (including the Indebtedness incurred in connection therewith) had occurred on the first day of the four fiscal quarter period ended with such most recently ended fiscal quarter; and (v) in the case of any acquisition by the Borrower and its Subsidiaries, for cash or by any Restricted Subsidiary other consideration exceeding $30,000,000 in the aggregate, such acquisition shall be subject to the prior written consent of the Required Lenders;
(other than any Special Purpose Subsidiaryk) in any other Restricted Subsidiaryinvestments existing on the Closing Date and set forth on Schedule 8.10; and
(hl) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are investments not permitted by the foregoing clauses of this subsection 6.68.10 by the Borrower or its Subsidiaries in a Person which the Borrower and/or its Subsidiaries owns, or immediately after giving effect to such investment will own, more than 20% of such Person's outstanding voting Capital Stock (but which Person is not, and will not be, after giving effect to such investment, a Subsidiary) in an aggregate amount not to exceed $15,000,000 outstanding at any time (determined on a cumulative basis from and after the Closing Date, but giving effect to reductions of amounts outstanding by the amount of capital in respect thereof returned in cash to the Borrower or the applicable Subsidiary from time to time).
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advanceseach, loans, extensions of credit, capital contributions, purchases and investments being herein called an "InvestmentsInvestment"), any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and or its Restricted Subsidiaries in the ordinary course of business in an aggregate principal amount outstanding for the Borrower and its Subsidiaries not to exceed $10,000,000 250,000 in the aggregate or $100,000 for any one employee, at any one time outstandingoutstanding (including the principal amount of the loans listed on SCHEDULE 7.8);
(d) Investments by the Borrower in its Subsidiaries and investments by a Subsidiary in the Borrower and in other Subsidiaries; PROVIDED that any Subsidiary making an investment or receiving the proceeds thereof is a member of the Borrower consolidated group for financial reporting and tax purposes;
(e) Investments of amounts held in depositary accounts (other than accounts assigned to the Agent) in financial institutions geographically proximate to the location of the Borrower's or a Subsidiary's operations; PROVIDED, that such amounts do not exceed $20,000 at any single institution or $150,000 in the aggregate;
(f) Loans by CSF to Labor World, Office Ours and Tandem franchisees; PROVIDED that with respect to all such loans after the Closing Date such franchisees shall have issued a negotiable promissory note to CSF evidencing each loan which note has been endorsed and delivered to the Agent for the ratable benefit of the Banks;
(g) Investments by the Borrower or any Subsidiary in its Restricted Subsidiaries and Investments by any Restricted Person not a Subsidiary on the Closing Date arising out of a Permitted Acquisition; PROVIDED that (other than any Special Purpose Subsidiaryi) in the Borrower has completed due diligence on the Person whose stock or by any Restricted Subsidiary assets are being acquired, (other than any Special Purpose Subsidiaryii) in any other Restricted Subsidiary; and
the Agent has received (hA) promissory notes the financial statements of the Person whose stock or assets are being acquired covering the most recent three (3) fiscal years of said Person, (B) the unaudited financial statements for such Person covering the most recent available interim period and other deferred payment obligations that constitute proceeds (C) a certificate of Asset Sales that are permitted by subsection 6.6.a Responsible Officer of the Borrower certifying as to the identity of the shareholders or
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting all or a material part of a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in Cash Equivalents;
(c) any Investment Guarantee Obligations permitted by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;Section 7.2; 89 84
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of Holdings, the Borrower or its Subsidiaries in the ordinary course of business (including, without limitation, for travel, entertainment and relocation expenses) in an aggregate amount for Holdings, the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 500,000 at any one time outstanding;
(ge) Investments the Transactions;
(f) investments made by the Borrower in or any of its Restricted Subsidiaries and Investments with the proceeds of any Reinvestment Deferred Amount;
(g) investments by Holdings, the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) of its Subsidiaries in the Borrower or by any Restricted Person that, prior to such investment, is a Wholly Owned Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted SubsidiaryGuarantor; and
(h) promissory notes acquisitions by the Borrower or any of its Subsidiaries of the Capital Stock of, or assets of, entities engaged in similar lines of business as the Borrower and other deferred payment obligations its Subsidiaries on the Closing Date, provided that constitute proceeds (i) the aggregate purchase price for all such acquisitions shall not exceed $20,000,000, (ii) the aggregate purchase price for all such acquisitions in any fiscal year shall not exceed $10,000,000, (iii) no Default or Event of Asset Sales that are Default shall have occurred or be continuing after giving effect to any such acquisition, (iv) no Indebtedness shall be assumed by the Borrower or any of its Subsidiaries in connection with any such acquisition except to the extent otherwise permitted by subsection 6.6pursuant to this Agreement and (v) the Borrower shall be in pro forma compliance with the covenants set forth in Section 7.1 after giving effect to any such acquisition.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment investment, in cash or by transfer of assets or property, in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments"each an “Investment”), any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) any Investment by Investments existing on the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) Closing Date and described in Persons engaged in Schedule 8.9(c), setting forth the telecommunications business or businesses related thereto, provided that (i) respective amounts of such Person, if it shall be Investments as of a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliancerecent date;
(d) any Investment Investments in notes receivable and other instruments and securities obtained in connection with transactions permitted by subsection 8.6(a)(iii);
(e) loans and advances to officers, directors or employees of Holding, the Borrower or any Restricted Subsidiary of their respective Subsidiaries (other than any Special Purpose Subsidiaryi) in Persons not engaged the ordinary course of business for travel and entertainment or relocation expenses, (ii) existing on the Closing Date and described in Schedule 8.9(c), or (iii) relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity or as otherwise specified in subsection 8.11;
(f) (i) Investments by the Borrower in its Wholly Owned Subsidiaries and by such Subsidiaries in the telecommunications business or businesses related thereto ifBorrower and in Wholly Owned Subsidiaries of the Borrower, provided that the aggregate amount of Investments made by any Loan Party after giving effect theretothe date hereof in any Subsidiary that is not a Loan Party shall not exceed $3,000,000 at any one time outstanding and (ii) Investments in Holding in amounts and for purposes for which dividends are permitted under subsection 8.7, provided that at no time does the aggregate amount of such Investments then held by and relevant dividends exceed the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% permitted amount of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstandingdividends;
(g) Investments by the Borrower and its Subsidiaries under Permitted Hedging Arrangements, including Investments of the Borrower under Interest Rate Protection Agreements relating to Indebtedness of the Borrower under this Agreement;
(h) Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business or otherwise described in subsection 8.3(c), (d) or (f);
(i) Investments representing non-cash consideration received by the Borrower or any of its Restricted Subsidiaries in connection with any Asset Sale;
(j) Investments representing evidences of Indebtedness, securities or other property received from another Person by the Borrower or any of its Subsidiaries in connection with any bankruptcy proceeding or other reorganization of such other Person or as a result of foreclosure, perfection or enforcement of any Lien or exchange for evidences of Indebtedness, securities or other property of such other Person held by the Borrower or any of its Subsidiaries, provided that in the event that the aggregate expected value of such securities or other property received with respect to a Person is less than $250,000, the Borrower or such Subsidiary may dispose of such securities and other property within 180 days of the receipt thereof;
(k) loans to Local Agents and Owner/Operators in the ordinary course of business for working capital purposes, and Investments by the Borrower and its Subsidiaries represented by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Financing Lease or conditional sale of equipment by the Borrower or any of its Subsidiaries to Local Agents or Owner/Operators, in an aggregate amount not to exceed $3,500,000 outstanding at any one time, provided that such amount shall be reduced by the aggregate principal amount of loans and advances in respect of Guarantee Obligations permitted by subsection 8.4(i);
(l) Investments constituting, or acquired with amounts constituting, reserves or surplus maintained by any Restricted Insurance Subsidiary in accordance with any Requirement of Law in respect of obligations pursuant to insurance policies issued by such Insurance Subsidiary in the ordinary course of its insurance business;
(other than m) loans and advances by the Borrower or any Special Purpose Subsidiaryof its Subsidiaries to Holding expressly permitted by subsection 8.7;
(n) in loans and advances made by CRS Holding, SRHL, any of their respective Subsidiaries or any other Restricted SubsidiarySubsidiary of the Borrower primarily engaged in the Employee Relocation Business for the purpose of financing a portion of the purchase price for the acquisition of residential real estate, fixtures or related assets, provided that such loans and advances are made by CRS Holding, SRHL or any such Subsidiaries in the ordinary course of business in connection with the provision of relocation services; and
(ho) promissory notes [Investments comprised of loans, advances or dividends to Holding [to allow Holding to capitalize a Relocation SPV]; provided that (i) the aggregate amount of all such Investments outstanding at any time shall not exceed an amount that is equal to $30,000,000, and other deferred payment obligations that constitute proceeds (ii) within five Business Days after the making of Asset Sales that are permitted such Investment, the Relocation SPV shall have acquired from the Borrower or any of its Subsidiaries assets pursuant to subsection 8.6(a)(x) or repaid all amounts owed by subsection 6.6the Relocation SPV to the Borrower or any of its Subsidiaries, in an amount substantially equal (after giving effect to any ordinary course discounts in connection with such transactions) to the amount of such Investment.] [NOTE: TBD]
Appears in 1 contract
Samples: Credit and Guarantee Agreement
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting all or a material part of a division or line of business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in Cash Equivalents;
(c) any Investment Guarantee Obligations permitted by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma ComplianceSection 7.2;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees employees, directors and officers of the Borrower Company or its Subsidiaries in the ordinary course of business (including for travel, entertainment and its Restricted Subsidiaries relocation expenses) in an aggregate principal amount outstanding for the Company and its Subsidiaries not to exceed $10,000,000 2,000,000 at any one time outstanding;
(e) the Acquisition and related transactions, including loans and capital contributions to pay the cost of the Acquisition and to capitalize Subsidiaries;
(f) investments made by the Company or any of its Subsidiaries with the proceeds of any Reinvestment Deferred Amount;
(g) Investments loans, advances and investments by the Borrower Company or any of its Subsidiaries in the Company or any Person that is a Wholly Owned Subsidiary Guarantor;
(h) Intercompany Loans, other investments or capital contributions by the Company and its Restricted Wholly-Owned Subsidiaries to Foreign Subsidiaries in an aggregate amount for the Company and Investments by such Wholly-Owned Subsidiaries not to exceed $35,000,000 at any Restricted Subsidiary one time outstanding, provided that (other than as may be required from time to time by applicable law or to the extent it would adversely affect the deductibility of interest on any Special Purpose SubsidiaryIntercompany Note or otherwise have a material adverse tax effect on the Foreign Subsidiary in question) no more than $10,000,000 of the foregoing amount may be in the form of investments or capital contributions;
(i) Intercompany Loans by the Company and its Wholly-Owned Subsidiaries in the ordinary course of business to Subsidiaries which are not Subsidiary Guarantors or Foreign Subsidiaries in an aggregate amount for the Company not to exceed $5,000,000 at any one time outstanding;
(j) Permitted Acquisitions;
(k) in addition to investments otherwise expressly permitted by this Section 7.8 (excluding, however, the Borrower preceding paragraph (h)), investments by the Company or by any Restricted Subsidiary of its Subsidiaries in an aggregate amount (valued at cost) not to exceed $20,000,000 during the term of this Agreement;
(l) loans to officers and managers of Grove Investors, Holdings and the Company or the receipt of promissory notes from such officers and managers to enable such officers and managers to purchase Capital Stock of Grove Investors;
(m) the Company and its Subsidiaries may acquire and own investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers or in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising out of the ordinary course of business; provided that the Company and its Subsidiaries have paid no new consideration (other than any Special Purpose Subsidiaryforgiveness of Indebtedness or other obligations) therefor;
(n) investments by the Company and its Subsidiaries in any other Restricted Subsidiaryconnection with Hedging Agreements; and
(ho) promissory notes and in addition to the Intercompany Loans, other deferred payment obligations that constitute proceeds of Asset Sales that are investments or capital contributions permitted by subsection 6.6the preceding paragraph (h), Intercompany Loans, other investments or capital contributions by the Company and its Wholly-Owned Subsidiaries in connection with charges relating to facilities closings in an aggregate amount for the Company and such Wholly-Owned Subsidiaries not to exceed $30,000,000.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in Cash Equivalents, including any such investment that may be readily sold or otherwise liquidated in any Fund for which any Subsidiary or other Investment Firm provides management, advisory or administrative services and which principally invests in Cash Equivalents;
(c) any investment in or loan or advance to a Subsidiary or an Investment by the Borrower Firm or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided a Person that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investmentinvestment will be a Subsidiary or an Investment Firm, if, after giving effect to such investment, no Default shall have occurred and be continuing (provided that such Investment Firm or Subsidiary is engaged primarily in the Borrower is in Pro Forma ComplianceInvestment Management Business);
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior loans to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds officers of the Borrower in such an aggregate principal amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary not at any time exceeding $1,000,000; and (ii) immediately prior officers of any operating Subsidiary to facilitate the purchase by such officers of equity interests in such Subsidiary, provided (x) that any loan described in this clause (ii) shall be secured by a security interest in the equity so purchased and after giving effect to (y) the aggregate principal amount of all such Investment, the Borrower is in Pro Forma Complianceloans at any time outstanding shall not at any time exceed $25,000,000;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower or any Subsidiary for travel, entertainment and its Restricted Subsidiaries relocation expenses in the ordinary course of business in an aggregate principal amount outstanding for the Borrower and its Subsidiaries not to exceed $10,000,000 500,000 at any one time outstanding (other than as permitted in Section 7.10(f)) and (ii) in the case of a Subsidiary, loans and advances to employees for travel, entertainment and relocation expenses in the ordinary course of business to the extent that such loans and advances are made out of that portion of its revenues designated as Operating Cash Flow (and not Free Cash Flow) under the relevant Revenue Sharing Agreement;
(f) to the extent made out of the portion of the revenues of a Subsidiary which is designated as Operating Cash Flow (and not Free Cash Flow) under the relevant Revenue Sharing Agreements;
(g) other than as permitted in Section 7.10(f), investments in any Fund or financial product for which any Subsidiary provides management, advisory or administrative services in an aggregate amount not to exceed $5,000,000 at any one time outstanding;
(gh) Investments so long as no Default exists, any purchase by the Borrower in its Restricted Subsidiaries and Investments of Feline Prides I Senior Notes or Zero Coupon Bonds;
(i) Indebtedness received by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary as consideration in a sale or other disposition permitted under Section 7.6(d) or (other than any Special Purpose Subsidiarye) in an aggregate principal amount not to exceed $25,000,000 at any time outstanding;
(j) so long as no Default exists, any purchase of COBRAs or Feline Prides II Senior Notes; provided that the aggregate principal amount of all such purchases in any year shall not exceed $50,000,000;
(k) any purchase of Indebtedness of the Borrower with proceeds from a substantially contemporaneous issue of Indebtedness by the Borrower so long as such newly issued Indebtedness (i) has economic terms, as of the date of issuance, consistent with market terms for a similarly creditworthy issuer and (ii) has other Restricted Subsidiaryterms, as a whole, not more onerous to the Borrower than the applicable purchased Indebtedness; and
(hl) promissory notes any investment by an Unrestricted Entity in an entity; provided that (i) the Borrower and other deferred payment obligations that constitute proceeds its Subsidiaries and the Unrestricted Entities, taken as a whole, shall only have a minority investment in such entity, (ii) such entity is engaged in investment advisory, management or distribution services or activities reasonably related or complementary thereto, and (iii) neither the Borrower nor any Subsidiary has guaranteed, or is otherwise liable for, any obligation of Asset Sales that are permitted by subsection 6.6such entity (any such entity, an “Unrestricted Investment Firm”).
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Personother Person (“Investments”), except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) any Investment guarantees permitted by subsection 7.2;
(i) Investments in the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related theretoof its Subsidiaries, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such InvestmentInvestments in LIN TV, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become so long as a Restricted Subsidiary unless Payment for the same purpose would then be permitted to be made under subsection 7.6 (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount it being understood that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to any such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and made in reliance on this clause (ii) immediately prior and after giving effect shall reduce to such Investment, an equivalent extent the Borrower is in Pro Forma ComplianceRestricted Payments permitted by subsection 7.6);
(e) any Investment arising from the acquisition loans and advances by the Borrower or its Subsidiaries to their respective directors, officers and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed exceeding $10,000,000 5,000,000 at any one time outstanding;
(f) Investments in existence on the Closing Date and listed on Schedule 7.8(f), and extensions, renewals, modifications or restatements or replacements thereof, provided that no such extension, renewal, modification or restatement shall (i) increase the amount of the original Investment or (ii) adversely affect the interests of the Lenders with respect to such original Investment or the interests of the Lenders under this Agreement or any other Loan Document in any material respect;
(g) Investments permitted by subsections 7.2(b), (d), (f) and (l), subsections 7.4 and 7.6 and Investments constituting Capital Expenditures;
(h) Capital Stock, promissory notes and other similar non-cash consideration received by the Borrower or any of its Subsidiaries in its Restricted Subsidiaries connection with any Sale permitted by subsection 7.5 and Capital Stock, promissory notes and other similar non-cash consideration received in connection with Permitted Acquisitions or Asset Swap Transactions;
(i) Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Interest Rate Protection Agreements relating to the businesses and finances of the Borrower or by any Restricted Subsidiary of its Subsidiaries and not for purposes of speculation;
(j) Investments (including debt obligations and Capital Stock) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other than any Special Purpose Subsidiarydisputes with, customers and suppliers arising in the ordinary course of business;
(k) in addition to Investments otherwise expressly permitted by this subsection, Investments made after the Closing Date by the Borrower and its Subsidiaries in an aggregate amount (in each case, valued at cost, without regard to any other Restricted Subsidiarywrite down or write up thereof) at any one time outstanding not to exceed $10,000,000;
(l) Investments after the Closing Date by the Borrower and its Subsidiaries constituting Permitted Acquisitions or Asset Swap Transactions;
(m) Investments of Net Cash Proceeds not required to be applied to the prepayment of Term Loans pursuant to subsection 2.9;
(n) Investments in the LLC solely for the purpose of curing any event of default or potential event of default under the Joint Venture Loan, in a net amount not to exceed the Available Amount;
(o) Investments not otherwise permitted by this subsection 7.8 in a net amount not to exceed $10,000,000; and
(hp) promissory notes Investments acquired in exchange for the issuance of Capital Stock of LIN TV and other deferred payment obligations that constitute proceeds of Asset Sales that which, to the extent initially acquired by LIN TV, are permitted by subsection 6.6contributed to the Borrower as equity.
Appears in 1 contract
Samples: Credit Agreement (Lin Tv Corp.)
Limitation on Investments, Loans and Advances. Make At any time a Collateral/Covenant Release Period is not in effect, make any advance, loan, extension of credit (including the incurrence or assumption of any Guarantee Obligation) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment investment, in cash or by transfer of assets or property, in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments"each an “Investment”), any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in cash and Cash Equivalents;
(c) Investments existing on the Effective Date and described in Schedule 8.8(c), setting forth the respective amounts of such Investments as of a recent date;
(d) Investments in notes receivable and other instruments and securities obtained in connection with any Investment Permitted Receivables Transaction and any optional payment or prepayment on, or optional repurchase or redemption of, any Existing Notes or Additional Notes;
(e) loans and advances to officers, directors or employees of Holding or any of its Subsidiaries (i) in the ordinary course of business for travel and entertainment expenses, (ii) existing on the Effective Date and described in Schedule 8.8(c), (iii) made after the Effective Date for relocation expenses in the ordinary course of business, (iv) made for other purposes in an aggregate amount (as to Holding and all of its Subsidiaries) of up to $10,000,000 outstanding at any time and (v) relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity;
(f) (i) Investments by the Borrower or any Restricted Subsidiary Company in its Wholly Owned Subsidiaries (other than any Special Purpose Receivables Subsidiary) in Persons engaged and Subsidiary Guarantors and by such Wholly Owned Subsidiaries and Subsidiary Guarantors in the telecommunications business Company, Wholly Owned Subsidiaries of the Company (other than any Receivables Subsidiary) and Subsidiary Guarantors or businesses related thereto, Investments by the Company or any Guarantor in a Subsidiary that is not a Guarantor; provided that any Investments by the Company or any Guarantor in a Subsidiary that is not a Guarantor under this clause (if)(i) such Person, if it shall only be a Subsidiary, shall become a Restricted Subsidiary unless permitted so long as (A) such Person no Event of Default is existing or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, would result after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment thereto and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower Company is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and Compliance after giving effect to such Investment the Borrower is and any Indebtedness incurred in Pro Forma Compliance;
connection therewith, and/or (fii) loans Investments in Intermediate Holding in amounts and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstandingfor purposes for which dividends are permitted under subsection 8.7;
(g) acquisitions expressly permitted by subsection 8.9;
(h) (i) Investments of the Company and its Subsidiaries under Interest Rate Protection Agreements or under Permitted Hedging Arrangements, (ii) the CoBank Equities and any other similar stock or securities of, or Investments in, CoBank or its investment services or programs, and (iii) any Investments in patronage assets in respect of any loan and advances made by a Farm Credit Lender from time to time;
(i) Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business or otherwise described in subsection 8.3(c), (d) or (f);
(j) Investments representing non-cash consideration received by the Company or any of its Subsidiaries in connection with any Asset Sale pursuant to subsection 8.6;
(k) any Investment by the Company and its Subsidiaries in a Receivables Subsidiary which, in the judgment of the Company, is prudent and reasonably necessary in connection with, or otherwise required by the terms of, any Permitted Securitization Transaction;
(l) Investments by the Borrower Company or any of its Subsidiaries in a Person in connection with a joint venture or similar arrangement (including, without limitation, Foreign Subsidiaries) in an aggregate amount not to exceed at any time (together with any Guarantee Obligations permitted by subsection 8.2(v)) an amount equal to $300,000,000;
(m) Investments in industrial development or revenue bonds or similar obligations secured by assets leased to and operated by the Company or any of its Restricted Subsidiaries that were issued in connection with the financing of such assets, so long as the Company or any such Subsidiary may obtain title to such assets at any time by optionally canceling such bonds or obligations, paying a nominal fee and terminating such financing transaction;
(n) Investments representing evidences of Indebtedness, securities or other property received from another Person by the Company or any Restricted Subsidiary of its Subsidiaries in connection with any bankruptcy proceeding or other reorganization of such other Person or as a result of foreclosure, perfection or enforcement of any Lien or exchange for evidences of Indebtedness, securities or other property of such other Person held by the Company or any of its Subsidiaries;
(o) Investments (other than acquisitions) so long as (i) no Event of Default exists or would result therefrom and (ii) the Consolidated Total Leverage Ratio is less than 3.25 to 1.00 after giving effect to any Special Purpose Subsidiarysuch Investments and any Indebtedness incurred in connection therewith on a pro forma basis as of the most recently ended Test Period;
(p) Investments by the Company and its Subsidiaries in an aggregate outstanding amount at any time not to exceed the Borrower Cumulative Available Amount in effect at such time so long as (i) no Event of Default exists or by would result therefrom and (ii) the Company is in Pro Forma Compliance after giving effect thereto and any Restricted Subsidiary (other than any Special Purpose Subsidiary) Indebtedness incurred in any other Restricted Subsidiaryconnection therewith; and
(hq) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are Investments not otherwise permitted by the preceding clauses of this subsection 6.68.8 not to exceed in the aggregate at any time the greater of (i) $150,000,000 and (ii) 10% of the consolidated total assets of the Company and its Subsidiaries shown on the consolidated balance sheet of the Company and its Subsidiaries as of the end of the most recent fiscal quarter for which an Adjustment Date has occurred, determined on a consolidated basis in accordance with GAAP.
Appears in 1 contract
Samples: Credit Agreement (Graphic Packaging International, LLC)
Limitation on Investments, Loans and Advances. Make Make, and shall not permit any Subsidiary to make, any advance, loan, extension of credit (excluding Guarantee obligations but including any payment by a guarantor thereunder) or capital contribution to, or purchase of any stockCapital Stock, bonds, notes, debentures (other than bonds, notes or debentures in respect of Debt of the Borrower or any Subsidiary) or other securities of, or purchase all or a material part of or any assets constituting a business unit or line of business of (or all or substantially all the assets of), or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any PersonPerson (any of the foregoing, an "Investment") except:
(ai) (A) extensions of trade credit in the ordinary course of business and (B) Investments (including reinvestments thereof by any intermediate Subsidiary) to the extent the ultimate proceeds thereof are applied to maintenance capital expenditures in the ordinary course of business and required to comply with Section 8.01(e) for merchant generation plants of any wholly-owned Subsidiary; NY3 - 402471.08
(ii) the Borrower may acquire all of a material part of any domestic regulated business, provided that the aggregate principal amount of Debt incurred or assumed by the Borrower and its Subsidiaries in connection with such acquisition (together with the aggregate principal amount of Indebtedness of such acquired Person) shall not exceed fifty percent (50%) of the lesser of the fair value or cost of such acquired assets;
(biii) the Borrower and its Subsidiaries may invest in, acquire and hold Cash Equivalents (as defined in Schedule 8.02(e)(iii));
(iv) the Borrower or any of its Subsidiaries may make reasonable travel and entertainment advances, relocation loans and payroll advances in the ordinary course of business to officers and employees of the Borrower or any such Subsidiary;
(v) Investments of the Borrower or any Subsidiary existing on the date hereof and the receipt of any additional securities constituting payments in kind on such existing Investments;
(vi) Investments arising out of bankruptcy of customers and suppliers;
(vii) subject to 8.02(d), Investments consisting of non-cash consideration received in connection with sales of assets;
(viii) Investments in Cash Equivalentswholly-owned Subsidiaries of the Borrower in furtherance of winding down or exiting of the operation of the unregulated merchant energy business or operation of the Borrower and its Subsidiaries;
(cix) any Investment in connection with cash management and tax efficient financing of the Borrower and its Subsidiaries in the ordinary course of business consistent with past practice, Investments by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfiedBorrower or any Subsidiary of the Borrower, provided that the Borrower proceeds thereof shall have made a Pro Rata Payment Offer in an amount equal not be used to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliancefinance any capital expenditure;
(dx) any Investment by other Investments of the Borrower or any Restricted Subsidiary (other after the date hereof of not more than any Special Purpose Subsidiary) in Persons not engaged $30,000,000 in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Complianceaggregate;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstanding;
(gxi) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiaryis contractually obligated to make on the date hereof; and
(hxii) promissory notes and other deferred payment obligations that constitute proceeds Investments required by a Requirement of Asset Sales that are permitted by subsection 6.6Law.
Appears in 1 contract
Samples: Credit Agreement (Aquila Inc)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any Contingent Obligation for the benefit of, or purchase, stock, bonds, notes, debentures or other securities of or any assets constituting a business unit ofinterest in, or make any other investment in, or acquire assets other than in (such advances, loans, extensions the ordinary course of credit, capital contributions, purchases and investments being herein called "Investments")business from, any Person, except:
(a) extensions the Company may make loans or advances to, or investments in, any Subsidiary Guarantor, and any Subsidiary Guarantor may make loans or advances to, or investments in, the Company or any other Subsidiary Guarantor, to the extent the Indebtedness created thereby is permitted by subsection 8.1(e)(i);
(b) the Company and its Subsidiaries may invest in, acquire and hold Cash Equivalents;
(c) the Company or any of trade credit its Subsidiaries may make travel and entertainment advances and relocation loans in the ordinary course of business to officers and employees of the Company or any such Subsidiary, PROVIDED that the aggregate principal amount of all such loans and advances outstanding at any one time, together with the guarantees of such Loans and advances made pursuant to subsection 8.3(b), shall not exceed $1,000,000;
(d) the Company or any of its Subsidiaries may make payroll advances in the ordinary course of business;
(be) Investments the Company or any of its Subsidiaries may acquire and hold receivables and promissory notes owing to it, if created or acquired in Cash Equivalentsthe ordinary course of business and payable or dischargeable in accordance with customary trade terms (PROVIDED that nothing in this subsection 8.6 shall prevent the Company or any Subsidiary from offering such concessionary trade terms, or from receiving such investments in connection with the bankruptcy or reorganization of their respective suppliers or customers or the settlement of disputes with such customers or suppliers arising in the ordinary course of business, as management deems reasonable in the circumstances);
(cf) any Investment the Company and its Subsidiaries may make investments constituting non-cash consideration in connection with Asset Sales permitted by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided subsection 8.5; PROVIDED that (i) the amount of any such Person, if it investment shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds not exceed 10% of the Borrower aggregate consideration to be received by the Company and its Subsidiaries in respect of such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary Asset Sale and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower amount of any such investment exceeds $20,000,000, the Company shall use its best efforts to (x) cause each such investment to be made in such a form and its Restricted Subsidiaries give consideration on such terms so that such investment can be pledged to the Administrative Agent, for the System or Systems acquired by them in connection with benefit of the Lenders, and (y) pledge such Asset Swap that is in addition investment to the System or Systems transferred by them in exchange thereforAdministrative Agent, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if for the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees benefit of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not Lenders, on terms reasonably satisfactory to exceed $10,000,000 at any one time outstandingthe Administrative Agent;
(g) Investments the Company and its Subsidiaries may make loans or advances to, incur Contingent Obligations for the benefit of, make acquisitions from or of, and make investments in, other Persons, including, without limitation, Indebtedness described in subsection 8.1(e)(ii) and Contingent Obligations described in subsections 8.1(f); PROVIDED that the aggregate amount of the consideration paid or invested and the amounts loaned, advanced or guaranteed by the Borrower Company and its Subsidiaries in its Restricted Subsidiaries and Investments all such transactions after the Closing Date (net, in the case of loans, advances or investments, of any repayments or return of capital in respect thereof actually received in cash by any Restricted the Company or such Subsidiary (other than net of applicable taxes) after the Closing Date), when added to the amount of any Special Purpose Subsidiary) transfers or dispositions of assets described in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) proviso to subsection 8.5(c), does not exceed an aggregate amount of $10,000,000 in any other Restricted Subsidiarysingle transaction or series of related transactions or $20,000,000 in any fiscal year of the Company; and
(h) promissory notes the Company may make a loan to Holdings on the Closing Date in connection with the Refinancing, evidenced by the Holdings Note and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6in an aggregate principal amount not to exceed $100,000,000.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit (including the incurrence or assumption of any Guarantee Obligation) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment investment, in cash or by transfer of assets or property, in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments"each an “Investment”), any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in cash and Cash Equivalents;
(c) any Investment by Investments existing on the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) Effective Date and described in Persons engaged in Schedule 8.8(c), setting forth the telecommunications business or businesses related thereto, provided that (i) respective amounts of such Person, if it shall be Investments as of a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliancerecent date;
(d) any Investment by the Borrower or any Restricted Subsidiary (Investments in notes receivable and other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower instruments and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired securities obtained in connection with such Investment, shall become a Restricted Subsidiary unless (Atransactions permitted by subsection 8.6(c) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, Bond Prepayments permitted by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliancesubsection 8.13(a);
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to officers, directors or employees of Holding or any of its Subsidiaries (i) in the Borrower ordinary course of business for travel and its Restricted Subsidiaries entertainment expenses, (ii) existing on the Effective Date and described in Schedule 8.8(c), (iii) made after the Effective Date for relocation expenses in the ordinary course of business, (iv) made for other purposes in an aggregate principal amount outstanding not (as to exceed Holding and all of its Subsidiaries) of up to $10,000,000 outstanding at any one time outstandingand (v) relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity or as otherwise specified in subsection 8.10;
(gi) Investments by the Borrower in its Restricted Wholly Owned Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Receivables Subsidiary) and Subsidiary Guarantors and by such Wholly Owned Subsidiaries and Subsidiary Guarantors in the Borrower, Wholly Owned Subsidiaries of the Borrower or by any Restricted Subsidiary (other than any Special Purpose Receivables Subsidiary) and Subsidiary Guarantors (subject, in the case of Investments by any Loan Party in a Subsidiary that is not a Loan Party, to the limitations set forth in subsection 8.6(f)) and/or (ii) Investments in Holding and GPC in amounts and for purposes for which dividends are permitted under subsection 8.7;
(g) acquisitions expressly permitted by subsection 8.9;
(h) Investments of the Borrower and its Subsidiaries under Interest Rate Protection Agreements or under Permitted Hedging Arrangements;
(i) Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business or otherwise described in subsection 8.3(c), (d) or (f);
(j) Investments representing non-cash consideration received by the Borrower or any of its Subsidiaries in connection with any Asset Sale, provided that in the case of any Asset Sale permitted under subsection 8.6(i), such non-cash consideration constitutes not more than 25% of the aggregate consideration received in connection with such Asset Sale and any such non-cash consideration received by the Borrower or any of its Domestic Subsidiaries is pledged to the Administrative Agent for the benefit of the Secured Parties pursuant to the Security Documents (except to the extent occurring during any Collateral Release Period);
(k) any Investment by the Borrower and its Subsidiaries in a Receivables Subsidiary which, in the judgment of the Borrower, is prudent and reasonably necessary in connection with, or otherwise required by the terms of, any Permitted Receivables Transaction;
(l) Investments by the Borrower or any of its Subsidiaries in a Person in connection with a joint venture or similar arrangement (including, without limitation, Foreign Subsidiaries) in an aggregate amount not to exceed at any time (together with any Guarantee Obligations permitted by subsection 8.2(v)) an amount equal to $200,000,000; provided that the Borrower or such Subsidiary complies with the provisions of subsection 7.9(b) and (c) hereof, if applicable, with respect to such ownership interest;
(m) Investments in industrial development or revenue bonds or similar obligations secured by assets leased to and operated by the Borrower or any of its Subsidiaries that were issued in connection with the financing of such assets, so long as the Borrower or any such Subsidiary may obtain title to such assets at any time by optionally canceling such bonds or obligations, paying a nominal fee and terminating such financing transaction;
(n) Investments representing evidences of Indebtedness, securities or other Restricted property received from another Person by the Borrower or any of its Subsidiaries in connection with any bankruptcy proceeding or other reorganization of such other Person or as a result of foreclosure, perfection or enforcement of any Lien or exchange for evidences of Indebtedness, securities or other property of such other Person held by the Borrower or any of its Subsidiaries; provided that any such securities or other property received by the Borrower or any of its Domestic Subsidiaries (other than a Receivables Subsidiary or a Subsidiary of a Foreign Subsidiary) is pledged to the Administrative Agent for the benefit of the Secured Parties pursuant to the Security Documents;
(o) loans and advances to, and Guarantee Obligations in connection with Indebtedness incurred by, Management Investors in connection with the purchase by such Management Investors of Capital Stock of Holding of up to $25,000,000 outstanding at any one time; and
(hp) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are Investments not otherwise permitted by the preceding clauses of this subsection 6.68.8 not to exceed in the aggregate at any time the greater of (i) $100,000,000 and (ii) 10% of the consolidated total assets of Holding and its Subsidiaries shown on the consolidated balance sheet of Holding and its Subsidiaries as of the most recent Adjustment Date, determined on a consolidated basis in accordance with GAAP.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of of, or any assets constituting a business unit of, or make or maintain any other investment in (such advanceseach an Investment and, loanscollectively, extensions of credit, capital contributions, purchases and investments being herein called "Investments")) in, any Person, exceptexcept (subject to the final sentence of this Section 9.7) the following:
(a) extensions (i) loans or advances in respect of trade credit intercompany accounts attributable to the operation of the Company’s cash management system, (ii) loans or advances by the Company or any Restricted Subsidiary to the Company or any Restricted Subsidiary for working capital needs so long as such loans or advances constitute Indebtedness of the primary obligor that is not subordinate to any other Indebtedness of such obligor and, if evidenced by a promissory note, instrument or other writing and owed to the Company or any Subsidiary Guarantor, shall be pledged to the relevant Collateral Agent, and provided that the aggregate outstanding principal amount of all such loans, when aggregated with the aggregate amount of all Investments made by the Company and the Restricted Subsidiaries in its Subsidiaries pursuant to clause (b)(i) below, shall not exceed five percent (5%) of the Consolidated Total Assets, (iii) loans or advances to the Company or any Subsidiary Guarantor which are subordinated to the Finance Obligations on the terms and conditions set forth in Exhibit G and (iv) loans or advances by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(b) (i) Investments by the Company or a Subsidiary Guarantor in Domestic Subsidiaries of the Company that are not Credit Parties in an aggregate amount, when taken together with the aggregate amount of all outstanding loans and advances made pursuant to clause (a)(ii) above, not exceeding five percent (5%) of the Consolidated Total Assets; (ii) Investments by the Company or a Domestic Subsidiary in Foreign Subsidiaries of the Company in an aggregate amount not exceeding $100,000,000 for all such Investments made or committed to be made from and after the Effective Date plus an amount equal to any returns of capital or sales proceeds actually received in cash in respect of any such Investments (which amount shall not exceed the amount of such investment valued at cost at the time such investment was made); and (iii) Investments by any Subsidiary that is not a Credit Party in any other Subsidiary that is not a Credit Party;
(c) Investments by the Company or any of its Restricted Subsidiaries in Restricted Subsidiaries of the Company which are Credit Parties;
(d) any Domestic Subsidiary of the Company which is not a Credit Party may make Investments in the Company or any Domestic Subsidiary (by way of capital contribution or otherwise), and any Foreign Subsidiary of the Company may make Investments in the Company or any other Foreign Subsidiary (by way of capital contribution or otherwise);
(e) the Company or any Restricted Subsidiary may invest in, acquire and hold cash and Cash Equivalents;
(f) the Company or any of its Restricted Subsidiaries may make travel and entertainment advances and relocation loans in the ordinary course of business to officers, employees and agents of the Company or any such Restricted Subsidiary;
(g) the Company or any of its Restricted Subsidiaries may make payroll advances in the ordinary course of business;
(bh) Investments the Company or any of its Restricted Subsidiaries may acquire and hold receivables owing to it, if created or acquired in Cash Equivalents;
the ordinary course of business and payable or dischargeable in accordance with customary trade terms (cprovided that nothing in this clause (h) any Investment by shall prevent the Borrower Company or any Restricted Subsidiary (other than any Special Purpose Subsidiary) from offering such concessionary trade terms, or from receiving such Investments in Persons engaged connection with the bankruptcy or reorganization of their respective suppliers or customers or the settlement of disputes with such customers or suppliers arising in the telecommunications business ordinary course of business, as management deems reasonable in the circumstances);
(i) the Company and its Restricted Subsidiaries may make Investments in connection with asset sales permitted by Section 9.6 or businesses related theretoto which the Required Lenders consent;
(j) Investments, loans and advances of the Company or any Restricted Subsidiary existing on the Effective Date and described on Schedule 9.7 hereto;
(k) so long as no Default or Event of Default has occurred and is continuing or would exist after giving effect to such transaction, the Company and its Restricted Subsidiaries may make Permitted Acquisitions, Permitted Foreign Acquisitions and Investments in Permitted Joint Ventures, provided that (i) after giving effect thereto either (A) (1) Availability is at least 15% of the Line Cap at such Persontime and for the immediately preceding 60 days and (2) the Fixed Charge Coverage Ratio, on a pro forma basis, is at least 1.0 to 1.0 or (B) Availability is at least 20% of the Line Cap at such time and for the immediately preceding 60 days, 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 Sections 9.6 and 9.7 occurring after such period) as if such acquisition had occurred as of the first day of such period; (ii) the Secured Leverage Ratio of the Company and its Restricted Subsidiaries is less than 2.75 to 1.00 (calculated on a pro forma basis as of the last day of the fiscal quarter ending immediately preceding the effective date of such Permitted Acquisition or other Investment for which the relevant financial information has been delivered to the Lenders pursuant to Section 8.1 or 8.2, as applicable, giving effect to such Permitted Acquisition or Investment as if it shall be a Subsidiary, had been made on the first day of the Measurement Period ending on the last day of such fiscal quarter); (iii) if any Person shall become a Restricted Domestic Subsidiary of the Company by virtue of a Permitted Acquisition, then, unless (A) all or substantially all of the assets of such Person or assets shall be acquired with (I) proceeds of capital contributed are transferred to the Borrower expressly for Company (by merger of such purpose and/or (IIPerson with and into the Company or otherwise) funds within 90 days after the date such Person first become a Domestic Subsidiary of the Borrower Company, the Company shall cause such Person to become a Credit Party and shall cause each such Person to comply with the requirements set forth in Section 8.10, and (iv) no Permitted Foreign Acquisition or Permitted Joint Venture may be made of, with or in consideration of any assets which before or after giving effect to such amount thatInvestment are (or are required to be) Collateral other than as required under Section 8.10;
(l) Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(m) additional Investments, provided that both immediately before such Investment is made and immediately after giving effect thereto, the Special Payment Condition Conditions shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstanding;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; and
(hn) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are Investments permitted by subsection 6.6under Section 9.6(i).
Appears in 1 contract
Samples: Loan Agreement (KLX Inc.)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in Cash Equivalentscash equivalents, including any such investment that may be readily sold or otherwise liquidated in any Fund for which any Subsidiary or other Investment Firm provides management, advisory or administrative services and which principally invests in cash equivalents;
(c) any investment in or loan or advance to an Investment by the Borrower Firm or a Subsidiary or in any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related theretoPerson which, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investmentinvestment, will become a Subsidiary or an Investment Firm, if, after giving effect to such investment, no Default shall have occurred and be continuing (PROVIDED that such Investment Firm or Subsidiary is engaged primarily in the Borrower is in Pro Forma ComplianceInvestment Management Business);
(d) any Investment by loans to officers of the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 10,000,000;
(i) loans and advances to employees of the Borrower or any Subsidiary for travel, entertainment and relocation expenses in the ordinary course of business in an aggregate amount for the Borrower and its Subsidiaries not to exceed $500,000 at any one time outstanding (other than as permitted in SECTION 7.10(f)) and (ii) in the case of a Subsidiary, loans and advances to employees for travel, entertainment and relocation expenses in the ordinary course of business to the extent that such loans and advances are made out of that portion of its revenues designated as Operating Cash Flow (and not Free Cash Flow) under the relevant Revenue Sharing Agreement;
(f) to the extent made out of the portion of the revenues of a Subsidiary which is designated as Operating Cash Flow (and not Free Cash Flow) under the relevant Revenue Sharing Agreements;
(g) other than as permitted in SECTION 7.10(f), investments in any Fund or financial product for which any Subsidiary provides management, advisory or administrative services in an aggregate amount not to exceed $5,000,000 at any one time outstanding;
(gh) Investments any purchase by the Borrower in its Restricted Subsidiaries and Investments required by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Trust Indenture dated as of December 21, 2001 between the Borrower or and First Union National Bank, as trustee (as supplemented by the First Supplemental Indenture between the Borrower and First Union National Bank, as trustee, dated as of December 21, 2001), and any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiarypurchase by the Borrower of the Zero-Coupon Bonds required by the Indenture dated as of May 7, 2001 between the Borrower and First Union National Bank, as trustee; and
(hi) promissory notes and Indebtedness received by the Borrower or any Subsidiary as consideration in a sale or other deferred payment obligations that constitute proceeds of Asset Sales that are disposition permitted by subsection 6.6under SECTION 7.6(d) or (e) in an aggregate principal amount not to exceed $25,000,000 at any time outstanding.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make or allow to remain outstanding any advance, loan, extension Investment (whether such investment shall be of credit or capital contribution to, or purchase any the character of investment in shares of stock, bonds, notes, debentures evidences of indebtedness or other securities of or otherwise) in, or any assets constituting a business unit of, loans or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")advances to, any Person, exceptPerson other than:
(a) extensions of trade credit Permitted Investments;
(b) Investments existing on the Effective Date and listed on Schedule 8.7 attached hereto;
(c) sales on open account in the ordinary course of business;
(bi) intercompany loans or intercompany Investments made by any Credit Party to or in Cash Equivalents;
any Guarantor or any Borrower; provided that, in the case of any intercompany loans or intercompany Investments made by any Borrower in any Guarantor, the aggregate amount from time to time outstanding in respect thereof shall not exceed $2,500,000, (cii) intercompany loans made by any Investment Borrower to or in RetailMeNot, France, S.A.S., a company organized under the laws of France, to be used solely to finance the 2013 French Acquisition, and (iii) intercompany loans made by the any Borrower or Guarantor to or in any Restricted Foreign Subsidiary so long as (other than any Special Purpose Subsidiaryx) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) aggregate amount of all such Person, if it intercompany loans shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in not exceed an amount equal to $100,000,000, minus all Permitted Domestic Acquisitions and (y) all such amounts are used by such Foreign Subsidiary solely to finance a Permitted Foreign Acquisition; and provided, further, that in each case, under clauses (i), (ii), and (iii) above, (A) no Default or Event of Default shall have occurred and be continuing at the time of making such intercompany loan or intercompany Investment and or result from such intercompany loan or intercompany Investment being made, (B) the Borrower designates such Person, all intercompany loans shall be evidenced by notice and funded under an Intercompany Note pledged to the Administrative Agent, as an Unrestricted Subsidiary Agent under the appropriate Collateral Documents and (iiC) immediately prior no Credit Party will adjust, settle, compromise, amend or modify any such Intercompany Notes executed by a Foreign Subsidiary except for an adjustment, settlement, compromise, amendment or modification made in good faith and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount ordinary course of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliancebusiness;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries Investments in respect of any System or Systems in connection with any Asset Swap, Hedging Transactions provided that (i) to the extent that the Borrower such transaction is entered into for risk management purposes and its Restricted Subsidiaries give consideration not for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliancespeculative purposes;
(f) loans and advances to employees employees, officers and directors of any Borrower or any of its Subsidiaries for moving, entertainment, travel and other similar expenses in the Borrower and its Restricted Subsidiaries ordinary course of business in an the aggregate principal amount outstanding not to exceed $10,000,000 1,000,000 at any time outstanding or to purchase Equity Interests in RMN;
(g) Permitted Domestic Acquisitions and Investments in any Person acquired pursuant to a Permitted Domestic Acquisition;
(h) Investments constituting deposits made in connection with the purchase of goods or services in the ordinary course of business in an aggregate amount for such deposits not to exceed $250,000 at any one time outstanding;
(gi) Investments by received in connection with the Borrower bankruptcy or reorganization of account debtors, suppliers or customers and in its Restricted Subsidiaries and settlement of delinquent accounts;
(j) Investments by any Restricted Subsidiary in another Credit Party;
(other than any Special Purpose Subsidiaryk) in Investments otherwise expressly permitted under the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiaryterms of this Agreement; and
(hl) promissory notes other Investments not described above provided that both at the time of and other deferred payment obligations that constitute proceeds immediately after giving effect to any such Investment (i) no Default or Event of Asset Sales that are permitted by subsection 6.6Default shall have occurred and be continuing or shall result from the making of such Investment and (ii) the aggregate amount of all such Investments shall not exceed $250,000 at any time outstanding. In valuing any Investments for the purpose of applying the limitations set forth in this Section 8.7 (except as otherwise expressly provided herein), such Investment shall be taken at the original cost thereof, without allowance for any subsequent write-offs or appreciation or depreciation, but less any amount repaid or recovered on account of capital or principal.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (RetailMeNot, Inc.)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment (including by the issuance of letters of credit) in (such advancescollectively, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments"), any Person, Person except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) any Investment by loans and advances to officers and employees of the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged for travel, entertainment and relocation expenses in the telecommunications ordinary course of business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by for the Borrower and its Restricted Subsidiaries does not to exceed (x) $2,000,000 at any one time prior to outstanding;
(d) Investments constituting Permitted Business Investments made or entered into in the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds ordinary course of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment Oil and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma ComplianceGas Business;
(e) any Investment arising from Investments constituting Permitted Business Acquisitions made or entered into in the acquisition ordinary course of the Oil and Gas Business;
(f) Investments by the Borrower in any Restricted Subsidiary and its Investments by any Restricted Subsidiary in the Borrower or in other Restricted Subsidiaries or, if no Default or Event of any System Default has occurred and is continuing or Systems in connection with any Asset Swapwould result from such Investment, provided that (i) to the extent that by either the Borrower and its or a Restricted Subsidiaries give consideration for the System or Systems acquired by them Subsidiary in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and a Person who after giving effect to such Investment becomes a Restricted Subsidiary, provided that the Borrower is net book value of Investments made after the Closing Date in Pro Forma Compliance;
any Restricted Subsidiaries which (fi) loans are Domestic Subsidiaries but not Wholly-Owned Restricted Subsidiaries shall not exceed $25,000,000 and advances to employees (ii) are Foreign Subsidiaries shall not exceed 25% of the net book value of the assets of the Borrower and its Restricted Subsidiaries in an the aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstandingoutstanding after taking into account any return after the Closing Date from dividends, distributions and repayments in respect of such Investment;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by or any Restricted Subsidiary in Unrestricted Subsidiaries; provided that the aggregate amount of such Investments (other than net of any Special Purpose Subsidiarycash received as dividends or distributions on such Investments or from the sale of such Investments) in does not exceed, at any one time outstanding, $10,000,000, unless (after deducting that excess, pursuant to subsection 8.7(b)(iv), from the amount of Restricted Payments permitted by subsection 8.7(b)) the Borrower or by would be able to make, at such time, an additional Restricted Payment pursuant to subsection 8.7(b); provided further that the cumulative outstanding Investment in any Restricted Subsidiary (other than any Special Purpose Subsidiary) on the date that such Restricted Subsidiary is converted to an Unrestricted Subsidiary in any other Restricted Subsidiaryconformity with 66 subsection 8.17 shall be deemed an investment made on such conversion date in an Unrestricted Subsidiary for purposes of determining compliance with this subsection 8.8(g); and
(h) promissory notes Investments by the Borrower or any Restricted Subsidiary in securities which trade on the New York Stock Exchange, the American Stock Exchange or the NASDAQ Stock Market (including Investments existing on the Closing Date and listed on Schedule 8.8 hereof, but excluding Investments in Unrestricted Subsidiaries) in an aggregate amount (valued at cost) not to exceed $25,000,000 at any one time outstanding. The amount of all Investments (other deferred payment obligations that constitute proceeds than cash) (including, without limitation, the re-characterization of Asset Sales that are permitted a Restricted Subsidiary to be an Unrestricted Subsidiary) shall be the fair market value (as determined in good faith by subsection 6.6the board of directors of the Borrower or certified to the Administrative Agent by a Responsible Officer of the Borrower) on the date of the proposed Investment.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make or allow to remain outstanding any advance, loan, extension Investment (whether such investment shall be of credit or capital contribution to, or purchase any the character of investment in shares of stock, bonds, notes, debentures evidences of indebtedness or other securities of or otherwise) in, or any assets constituting a business unit of, loans or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments")advances to, any Person, exceptPerson other than:
(a) extensions Permitted Investments;
(b) Investments existing on the Effective Date and listed on Schedule 8.6 of trade credit the Disclosure Letter;
(c) sales on open account in the ordinary course of business;
(bd) intercompany loans or intercompany Investments in Cash Equivalents;
made by (ci) any Credit Party to or in any Guarantor or the Borrower, (ii) any Subsidiary that is not a Guarantor to any other Subsidiary that is not a Guarantor, and (iii) the Borrower or any Guarantor to any other Subsidiary that is not a Guarantor, in an amount not to exceed $500,000 in the aggregate in any Fiscal Year; provided that, in each case, no Default or Event of Default shall have occurred and be continuing at the time of making such intercompany loan or intercompany Investment or result from such intercompany loan or intercompany Investment being made and, in the case of intercompany loans made by the Borrower or any Restricted Subsidiary (other than Guarantor in any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided Credit Party that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by not the Borrower or a Guarantor, that any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held intercompany loans shall be evidenced by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior funded under an Intercompany Note pledged to the date on which Agent under the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Complianceappropriate Collateral Documents;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries Investments in respect of any System or Systems in connection with any Asset Swap, Hedging Transactions provided that (i) to the extent that the Borrower such transaction is entered into for risk management purposes and its Restricted Subsidiaries give consideration not for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliancespeculative purposes;
(f) Investments not to exceed One Hundred Thousand Dollars ($100,000) in the aggregate in any Fiscal Year consisting of loans and advances to employees employees, officers and directors of any Credit Party for (i) moving, entertainment, travel and other similar expenses in the ordinary course of business and (ii) the purchase of Equity Interests of the Borrower and or its Restricted Subsidiaries in an aggregate principal amount outstanding not pursuant to exceed $10,000,000 at any one time outstandingemployee stock purchase plan agreements approved by the Borrower’s board of directors;
(g) Investments by the Borrower in its Restricted Subsidiaries Permitted Acquisitions and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; andPerson acquired pursuant to a Permitted Acquisition;
(h) joint ventures or strategic alliances in the ordinary course of Borrower’s business consisting of the non-exclusive licensing of technology, the development of technology or the providing of technical support, provided that any related cash Investments by Borrower or any Guarantor do not exceed $250,000 in the aggregate in any Fiscal Year;
(i) Reserved;
(j) promissory notes and other deferred payment non-cash consideration received in connection with dispositions permitted by Section 8.4;
(k) Investments consisting of notes receivable of, or prepaid royalties and other credit extensions, to customers and suppliers who are not Affiliates, in the ordinary course of business, provided that this subparagraph (k) shall not apply to Investments of the Borrower in any Subsidiary;
(l) Investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers or in settlement of delinquent obligations that constitute proceeds of, or other disputes with, customers and suppliers in the ordinary course of Asset Sales business;
(m) Guarantee Obligations that are otherwise permitted by subsection 6.6under Section 8.1, in an aggregate amount not to exceed $250,000 at any time outstanding; and
(n) other Investments not described above provided that both at the time of and immediately after giving effect to any such Investment (i) no Default or Event of Default shall have occurred and be continuing or shall result from the making of such Investment and (ii) the aggregate amount of all such Investments shall not exceed $500,000 in any Fiscal Year. In valuing any Investments for the purpose of applying the limitations set forth in this Section 8.6 (except as otherwise expressly provided herein), such Investment shall be taken at the original cost thereof, without allowance for any subsequent write-offs or appreciation or depreciation, but less any amount repaid or recovered on account of capital or principal.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Rocket Fuel Inc.)
Limitation on Investments, Loans and Advances. Make The Borrower shall not, and shall not permit any of its Subsidiaries to, make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advancesany of the foregoing, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments"an “investment”), any Person, exceptexcept for:
(a) Acquisitions; provided that (i) with respect to Acquisitions of Other Media-Related Businesses, if, at the time of any such proposed Acquisition, the Maximum Total Debt Ratio as of the most-recently ended fiscal quarter of the Borrower calculated on a pro forma basis assuming the consummation of such Acquisition, is greater than 5.0:1, then no such Acquisition shall be permitted if it would cause the aggregate Consideration for all such Acquisitions consummated on or after the Closing Date to exceed $25,000,000, (ii) any individual Acquisition having an aggregate Consideration in excess of $100,000,000 shall not be permitted without Majority Lender consent, such consent not to be unreasonably withheld, (iii) any individual Acquisition having an aggregate Consideration in excess of $25,000,000, but less than or equal to $100,000,000 shall be conditioned on delivery to the Agent of a Covenant Compliance Certificate showing pro forma calculations assuming such Acquisition had been consummated, (iv) any individual Acquisition of properties or assets located in the United States having an aggregate Consideration of $25,000,000 or greater shall be also conditioned on delivery to the Agent of (1) all material documents reasonably requested by the Agent to insure that the Lenders have a first priority security interest in, and assignment of, all personal property assets and interests acquired, including consents of third parties if reasonably requested and (2) if such Acquisition is of a television or radio property and the aggregate Consideration therefor is $40,000,000 or greater, an opinion of FCC counsel to the Borrower in form and substance reasonably acceptable to the Agent and (v) in the event that the sum of (A) the aggregate Consideration for all Acquisitions of properties located in Mexico consummated on or after the Closing Date and (B) the aggregate amount invested on or after the Closing Date in Subsidiaries holding such properties pursuant to Section 6.7(b) exceeds $25,000,000, the Borrower shall, at the option of the Agent, deliver to the Agent such collateral, pledge and related documents as the Agent may reasonably request to cause all properties and assets of the Borrower and its Subsidiaries located in Mexico to become Collateral or Guarantor Collateral, as applicable; provided, further that no Acquisition shall be permitted if a Default has occurred and is continuing or would result from the consummation of such Acquisition;
(b) the Borrower’s investment in its Subsidiaries that are Guarantors, and such Subsidiaries’ investment in other Subsidiaries that are Guarantors; in each case subject to Section 6.7(a), the Borrower’s investment in its Mexican Subsidiaries, and such Subsidiaries’ investment in other Mexican Subsidiaries, provided, however, notwithstanding any other provision of this Agreement, the sum of (i) the Borrower’s investment in Subsidiaries holding radio or television properties located in Mexico made on or after the Closing Date and (ii) the aggregate Consideration for all Acquisitions of radio or television properties located in Mexico consummated on or after the Closing Date shall not exceed the Applicable Mexican Investment Amount;
(c) investments in Cash Equivalents;
(d) extensions of trade credit in the ordinary course of business;
(be) Investments in Cash Equivalents;investments existing on the Closing Date and listed on Schedule 6.7; and
(cf) any Investment by the Borrower or any Restricted Subsidiary additional investments (other than Acquisitions) not referred to in any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related theretoother clause of this Section 6.7, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by investments made on or after the Borrower and its Restricted Subsidiaries does Closing Date (net of any returns of capital with respect thereto) shall not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary 50,000,000 and (ii) immediately prior at the time of making any such investment, no Default shall have occurred or be continuing or would result therefrom and after giving effect the Agent shall have received a pro forma Covenant Compliance Certificate to such Investmenteffect. Notwithstanding the foregoing, the Borrower is in Pro Forma Compliance;
(e) License Subsidiaries shall not be permitted, under any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of circumstances, to make any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstanding;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; and
(h) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6investments.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in, any Person, except:
(a) any extension of trade credit in the ordinary course of business and investments in customer accounts or notes receivable for inventory sold or services rendered in the ordinary course of business and consistent with past practice;
(b) any investment in Cash Equivalents;
(c) any investment by the Parent in the Borrower, by the Borrower in any Restricted Subsidiary, or by any Restricted Subsidiary in the Borrower or any other Restricted Subsidiary;
(d) any loans by the Borrower to any Restricted Subsidiary, by the Parent to the Borrower or any Restricted Subsidiary or by any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary to the extent permitted under Section 6.2(d);
(e) after the occurrence of the Issuance Date, any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in, any Person (including an Unrestricted Subsidiary) provided that (i) no Default or Event of Default has occurred and is continuing and (ii) the aggregate outstanding amount of all such advances, loans, extensions of credit, capital contributions, purchases and other investments being herein called "Investments"), any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance6,000,000;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstandingPermitted Acquisitions;
(g) Investments Guarantee Obligations permitted by Section 6.4;
(h) loans to directors, officers and employees of any Loan Party provided that the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) aggregate amount of all such loans does not exceed $1,500,000 in the Borrower or by aggregate outstanding at any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiarytime; and
(hi) promissory notes loans to the Parent by the Borrower as long as Parent uses the proceeds of such Indebtedness to pay (A) franchise taxes and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted fees required to maintain Parent's corporate existence and (B) federal, state and local income taxes payable by subsection 6.6the Parent.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of of, or any assets constituting a business unit of, or make or maintain any other investment in (such advanceseach an “Investment” and, loanscollectively, extensions of credit, capital contributions, purchases and investments being herein called "“Investments")”) in, any Person, exceptexcept (subject to the final sentence of this Section 9.7) the following:
(a) extensions (i) loans or advances in respect of trade credit intercompany accounts attributable to the operation of the Company’s cash management system, (ii) loans or advances by the Company or any Restricted Subsidiary to the Company or any Restricted Subsidiary for working capital needs so long as such loans or advances constitute Indebtedness of the primary obligor that is not subordinate to any other Indebtedness of such obligor and, if evidenced by a promissory note, instrument or other writing and owed to the Company or any Subsidiary Guarantor, shall be pledged to the Collateral Agent, and provided that the aggregate outstanding principal amount of all such loans, when aggregated with the aggregate amount of all Investments made by the Company and the Restricted Subsidiaries in its Subsidiaries pursuant to paragraph (b)(i) below, shall not exceed five percent (5%) of the Consolidated Total Assets, (iii) loans or advances to the Company or any Subsidiary Guarantor which are subordinated to the Finance Obligations on the terms and conditions set forth in Exhibit F and (iv) loans or advances by any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(b) (i) Investments by the Company or a Subsidiary Guarantor in Domestic Subsidiaries of the Company that are not Credit Parties in an aggregate amount, when taken together with the aggregate amount of all outstanding loans and advances made pursuant to paragraph (a)(ii) above, not exceeding five percent (5%) of the Consolidated Total Assets; (ii) Investments by the Company or a Domestic Subsidiary in Foreign Subsidiaries of the Company in an aggregate amount not exceeding $2,500,000 for all such Investments made or committed to be made from and after the Execution Date plus an amount equal to any returns of capital or sales proceeds actually received in cash in respect of any such Investments (which amount shall not exceed the amount of such investment valued at cost at the time such investment was made); and (iii) Investments by any Subsidiary that is not a Credit Party in any other Subsidiary that is not a Credit Party;
(c) Investments by the Company or any of its Restricted Subsidiaries in Restricted Subsidiaries of the Company which are Credit Parties;
(d) any Domestic Subsidiary of the Company which is not a Credit Party may make Investments in the Company or any Domestic Subsidiary (by way of capital contribution or otherwise), and any Foreign Subsidiary of the Company may make Investments in the Company or any other Foreign Subsidiary (by way of capital contribution or otherwise);
(e) the Company or any Restricted Subsidiary may invest in, acquire and hold cash and Cash Equivalents, subject to Control Agreements in favor of the Collateral Agent for the benefit of the Lenders or otherwise subject to a perfected security interest in favor of the Collateral Agent for the benefit of the Lenders;
(f) the Company or any of its Restricted Subsidiaries may make travel and entertainment advances and relocation loans in the ordinary course of business to officers, employees and agents of the Company or any such Restricted Subsidiary, in an aggregate outstanding amount not exceeding $250,000 at any time for all such advances and relocation loans;
(g) the Company or any of its Restricted Subsidiaries may make payroll advances in the ordinary course of business;
(bh) Investments the Company or any of its Restricted Subsidiaries may acquire and hold receivables owing to it, if created or acquired in Cash Equivalents;
the ordinary course of business and payable or dischargeable in accordance with customary trade terms (cprovided that nothing in this paragraph (h) any Investment by shall prevent the Borrower Company or any Restricted Subsidiary (other than any Special Purpose Subsidiary) from offering such concessionary trade terms, or from receiving such Investments in Persons engaged connection with the bankruptcy or reorganization of their respective suppliers or customers or the settlement of disputes with such customers or suppliers arising in the telecommunications business ordinary course of business, as management deems reasonable in the circumstances);
(i) the Company and its Restricted Subsidiaries may hold Investments received as considerations in connection with asset sales permitted by Section 9.6 or businesses related theretoto which the Required Lenders consent;
(j) Investments, loans and advances of the Company or any Restricted Subsidiary existing on the Execution Date and described on Schedule 9.7 hereto;
(k) so long as the Payment Conditions are satisfied immediately before any transaction under this paragraph (k) and after giving effect to such transaction, the Company and its Restricted Subsidiaries may make Permitted Acquisitions, Permitted Foreign Acquisitions and Investments in Permitted Joint Ventures, provided that (i) such Person, if it shall be a Subsidiary, any Person shall become a Restricted Domestic Subsidiary of the Company by virtue of a Permitted Acquisition, then, unless (A) all or substantially all of the assets of such Person or assets shall be acquired with (I) proceeds of capital contributed are transferred to the Borrower expressly for Company (by merger of such purpose and/or Person with and into the Company or otherwise) within ninety (II90) funds days after the date such Person first become a Domestic Subsidiary of the Borrower in such amount that, after giving effect theretoCompany, the Special Payment Condition Company shall be satisfiedcause such Person to become a Credit Party and shall cause each such Person to comply with the requirements set forth in Section 8.10, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investmentno Permitted Foreign Acquisition or Permitted Joint Venture may be made of, the Borrower is with or in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner consideration of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person which before or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Complianceare (or are required to be) Collateral other than as required under Section 8.10;
(fl) loans Investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and advances to employees disputes with, customers and suppliers, in each case in the ordinary course of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstandingbusiness;
(gm) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary[reserved]; and
(hn) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6the Motley Acquisition.
Appears in 1 contract
Samples: Credit Agreement (KLX Energy Services Holdings, Inc.)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advancesincluding, loanswithout limitation, extensions any acquisition of creditall or any substantial portion of the assets, capital contributionsand any acquisition of a business or a product line, purchases and investments being herein called of other companies, other than the acquisition of inventory in the ordinary course of business) (each, an "InvestmentsInvestment"), any Person, except:
(ai) extensions the Company may make loans or advances to any Subsidiary, and any Subsidiary may make loans or advances to the Company or any other Subsidiary, to the extent in each case the Indebtedness created thereby is permitted by Section 6.01(c) and (ii) the Company may make loans or advances to Holdings to allow Holdings to consummate the Repurchase;
(b) (i) any Subsidiary may make Investments in the Company (by way of trade credit capital contribution or otherwise) and (ii) the Company and any Subsidiary may make Investments in, or create, any Wholly-Owned Domestic Subsidiary (by way of capital contribution or otherwise) or make Investments permitted by Section 6.05(b), provided that, in any such case, (x) if stock is issued or otherwise acquired in connection with such Investment, or if the stock of such Subsidiary was not previously pledged to the Administrative Agent, such stock is pledged to the Administrative Agent for the benefit of the Lenders so that 100% of the Capital Stock of such Subsidiary is pledged to the Administrative Agent and (y) such Subsidiary guarantees the obligations of the Company under the Notes and this Agreement, and grants liens or security interests in favor of the Administrative Agent, for the benefit of the Lenders, on substantially all of its assets to secure such guarantee, pursuant to a guarantee, a security agreement and other documentation reasonably satisfactory to the Administrative Agent;
(c) the Company and its Subsidiaries may make Investments in, acquire and hold Cash Equivalents and Investment Grade Securities;
(d) the Company or any of its Subsidiaries may make payroll advances in the ordinary course of business;
(be) Investments in Cash Equivalents;
(c) any Investment by the Borrower Company or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged of its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the telecommunications ordinary course of business and payable or businesses related thereto, dischargeable in accordance with customary trade terms (provided that nothing in this clause (ie) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to prevent the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower Company or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business from offering such concessionary trade terms, or businesses related thereto if, after giving effect thereto, the aggregate amount of from receiving such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person the bankruptcy or assets shall be acquired with (I) proceeds reorganization of capital contributed to their respective suppliers or customers or the Borrower expressly for such purpose and/or (II) funds settlement of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection disputes with such Asset Swap that is customers or suppliers arising in addition to the System or Systems transferred by them ordinary course of business, as management deems reasonable in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliancecircumstances);
(f) the Company or any of its Subsidiaries may make relocation and other loans to officers and employees of the Company or any such Subsidiary (or to Holdings so that it will make such loans), provided that the aggregate principal amount of all such loans and advances outstanding at any one time, together with the guarantees of such loans and advances made pursuant to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding Section 6.03(e), shall not to exceed $10,000,000 4,000,000 at any one time outstanding;
(g) the Company may make loans to employees of the Company and its Subsidiaries (or to Holdings so that it will make such Loans) the proceeds of which are used by such employees to purchase stock of Holdings, provided that the aggregate principal amount of all such loans shall not exceed, together with any guarantees of loans made pursuant to Section 6.03(i), at any one time outstanding $8,000,000;
(h) the Company and its Subsidiaries may make additional Investments; provided that, immediately prior to and after giving pro forma effect to any such acquisition and the financing thereof, no Default or Event of Default has occurred and is continuing or would result therefrom and (i) Availability is greater than $65,000,000 or (ii) (x) Availability is greater than $50,000,000 (but less than $65,000,000) and (y) the aggregate amount of all Investments made in accordance with this clause (ii) during the term of this Agreement does not exceed $75,000,000;
(i) the Company may make loans to employees of the Company and its Subsidiaries (or to Holdings so that it will make such Loans), the proceeds of which are used by such employees for travel and other ordinary expenses for which advances to employees are generally made in an aggregate principal amount not to exceed, when added to the amount of guarantees made by the Borrower Company pursuant to Section 6.03(j), at any one time outstanding $1,000,000;
(j) the Company or any of its Subsidiaries may make Investments in, or loans or Investments to, joint ventures or other Persons engaged primarily in one or more businesses in which the Company and its Restricted Subsidiaries are engaged or directly related thereto in an aggregate amount not to exceed $5,000,000 plus the sum of (A) any cash amounts dividended or distributed to the Company or any Subsidiary of the Company after the date hereof by such joint venture or other Person and Investments by (B) any Restricted Subsidiary (other than any Special Purpose Subsidiary) amounts from sales or distributions permitted in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted SubsidiarySection 6.05(i); and
(hk) promissory notes and other deferred payment obligations that constitute proceeds the Company may acquire Capital Stock of Asset Sales that are permitted by subsection 6.6Holdings pursuant to the Call Agreement or from Holdings for the purpose of delivering such Capital Stock to the holders of the Exchangeable Notes pursuant to the terms of the Exchangeable Note Indenture.
Appears in 1 contract
Samples: Credit Agreement (CSK Auto Corp)
