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 or maintain any other investment in, any Person (all of the foregoing, “Investments”), except: (a) (i) loans or advances by New Holdings or any of its Restricted Subsidiaries in respect of intercompany accounts attributable to the operation of the Borrowers’ cash management system and (ii) loans or advances by New Holdings or any of its Restricted Subsidiaries to a Borrower or Subsidiary Guarantor (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor); (b) Investments by New Holdings and its Restricted Subsidiaries in Restricted Subsidiaries of New Holdings that are not Borrowers or Subsidiary Guarantors; provided that at all times the aggregate amount of all such Investments at any time outstanding, together with any guarantees by New Holdings and its Restricted Subsidiaries of Indebtedness of a Restricted Subsidiary that is not a Borrower or Subsidiary Guarantor, shall not exceed $50,000,000; (c) Investments by New Holdings and the Restricted Subsidiaries, not otherwise described in this subsection 8.7, in Borrowers or in Subsidiary Guarantors (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor) that otherwise are not prohibited under the terms of this Agreement; (d) any Restricted Subsidiary of New Holdings may make Investments in New Holdings (by way of capital contribution or otherwise); (e) New Holdings 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) New Holdings 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 New Holdings or any such Restricted Subsidiary not to exceed $10,000,000 in the aggregate at any one time; (g) New Holdings or any of its Restricted Subsidiaries may make payroll advances in the ordinary course of business; (h) New Holdings or any of its Restricted Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (provided that nothing in this clause shall prevent New Holdings 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); (i) New Holdings and its Restricted Subsidiaries may make Investments in connection with asset sales permitted by subsection 8.6(e), (f) or (g) (to the extent permitted under such subsections and subsection 4.6(b)); (j) existing Investments described in Schedule 8.7; (k) New Holdings 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) [reserved], (iii) all actions required to be taken with respect to any acquired assets or acquired or newly formed Restricted Subsidiary under subsection 7.10 shall be taken substantially simultaneously with consummation of such acquisition (or such longer period of time as provided under subsection 7.10 or as the Administrative Agent shall agree), (iv) any such newly acquired Restricted Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by subsection 8.2 and (v) with respect to any such acquisition that involves aggregate consideration in excess of $20,000,000, the Borrower Agent has delivered to the Administrative Agent a certificate of a Responsible Officer to the effect set forth in clauses (i) through (iv) 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 New Holdings) given by New Holdings and its Restricted Subsidiaries for all acquisitions of assets by non-Loan Parties or Persons that do not become a Guarantor consummated after the Effective Date in reliance on this clause (k) shall not exceed $75,000,000; (i) Investments by New Holdings 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) New Holdings and its Restricted Subsidiaries may make loans or advances to, or acquisitions or other Investments in, Unrestricted Subsidiaries or other Persons (exclusive of Persons that are, or become, Foreign Subsidiaries or FSHCOs) that constitute or are in connection with joint ventures, provided (i) the amount of such loans, advances, acquisitions and Investments, when taken together with any guarantees incurred pursuant to subsection 8.4(g), shall not exceed in the aggregate the greater of (A) $75,000,000 and (B) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries and (ii) any such joint venture formed or acquired after the Effective Date shall comply with subsection 7.10(d); (n) New Holdings 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 or FSHCOs; provided the amount of such Investments shall not exceed in the aggregate $50,000,000 at any time outstanding; (o) New Holdings or any of its Restricted Subsidiaries may acquire obligations of one or more directors, officers, employees, members or management or consultants of any of New Holdings or its Restricted Subsidiaries in connection with such person’s acquisition of shares of the Parent, so long as no cash is actually advanced by New Holdings or any of its Restricted Subsidiaries to such persons in connection with the acquisition of any such obligations; (p) New Holdings 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) New Holdings and its Restricted Subsidiaries may acquire assets under a Permitted Asset Swap; (r) New Holdings and its Restricted Subsidiaries may make other Investments in an aggregate amount not to exceed the Available Amount at such time; (s) [Reserved]; (t) New Holdings 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 the Parent or (ii) the Net Proceeds of any substantially concurrent issuance of Capital Stock, which is not Disqualified Stock, by Parent (other than any issuance 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), 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)(iii)); provided that (x) immediately before and after making such Investment, no Default or Event of Default shall have occurred and be continuing, (y) in the case of clause (ii) in respect of an issuance by Parent, the proceeds thereof have been contributed by Parent in cash as common equity to New Holdings or such Restricted Subsidiary and (z) in the case of clause (ii), such issuance is to a Person other than a Group Member; (u) New Holdings and its Restricted Subsidiaries may make other Investments not to exceed at any time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), together with all other Investments made in reliance on this clause (u), the greater of (i) $75,000,000 and (ii) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries; and (i) New Holdings and its Restricted Subsidiaries may (x) make Investments in a Receivables Subsidiary in connection with a Receivables Facility; provided that any such Investment in a Receivables Subsidiary is in the form of a contribution of additional accounts receivable or as customary Investments in a Receivables Subsidiary in connection with a Receivables Facility and (y) make other customary Investments in connection with a Receivables Facility and (ii) a Receivables Subsidiary may purchase accounts receivable pursuant to a Securitization Repurchase Obligation in connection with a Receivables Facility. 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 cash from such Investment (from dispositions or otherwise) (which amount referred to in this clause (y) shall not exceed the amount of such Investment at the time such Investment was made). The amount of any consideration paid for any Investment consisting of the provision of services or the transfer of non-cash assets shall be equal to the fair market value of such services or non-cash assets, as the case may be, as determined by New Holdings in good faith.
Appears in 2 contracts
Samples: Term Loan Exchange Agreement (Cumulus Media Inc), 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, or make or maintain any other investment in, any Person (all of the foregoing, “Investments”)Person, except:
(a) (i) loans or advances by New Holdings or any of its Restricted Subsidiaries in respect of intercompany accounts attributable to the operation of the Borrowers’ Company's cash management system and (ii) loans or advances by New Holdings the Company or any of its Restricted Subsidiaries to a Borrower or Subsidiary Guarantor (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor), for working capital needs evidenced by a Pledged Note so long as such loans or advances constitute Indebtedness of the primary obligor that is not subordinate to any other Indebtedness of such obligor;
(b) Investments by New Holdings and its Restricted Subsidiaries investments in Restricted Subsidiaries of New Holdings the Company that are not Borrowers Subsidiary Guarantors (or a Subsidiary Guarantorsthat would be a Subsidiary Guarantor but for the lapse of time until such Subsidiary is required to be a Subsidiary Guarantor); provided PROVIDED that at all times the aggregate amount of all such Investments at any time outstanding, together with any guarantees by New Holdings and its Restricted Subsidiaries of Indebtedness of a Restricted Subsidiary that is not a Borrower or Subsidiary Guarantor, investments shall not exceed $50,000,000five percent (5%) of the total assets of the Company and its Subsidiaries on a consolidated basis;
(c) Investments by New Holdings and the Restricted Subsidiariesinvestments, not otherwise described in this subsection 8.7, in Borrowers or in Subsidiary Guarantors (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor) that otherwise are not prohibited under the terms of this Agreement;.
(d) any Restricted Subsidiary of New Holdings the Company may make Investments investments in New Holdings the Company (by way of capital contribution or otherwise);
(e) New Holdings the Company and its Restricted Subsidiaries may invest in, acquire and hold (i) Cash Equivalents and cash and (ii) other xxxxx cash equivalents invested held in or held with any financial institutions to local bank branches and in cash registers of the extent such amounts Company and its subsidiaries, in each case under this clause (ii) do not exceed $5,000,000 per individual institution and $25,000,000 in the aggregate at any one timeordinary course of business;
(f) New Holdings 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 New Holdings the Company or any such Restricted Subsidiary not to exceed $10,000,000 in the aggregate at any one timeSubsidiary;
(g) New Holdings the Company or any of its Restricted Subsidiaries may make payroll advances in the ordinary course of business;
(h) New Holdings the Company or any of its Restricted Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (provided PROVIDED that nothing in this clause (i) shall prevent New Holdings the Company 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);
(i) New Holdings the Company and its Restricted Subsidiaries may make Investments investments in connection with asset sales permitted by subsection 8.6(e), (f) 8.6 or (g) (to which the extent permitted under such subsections and subsection 4.6(b))Required Lenders consent;
(j) investments of the Company existing Investments on the Closing Date and described in Schedule 8.78.8;
(k) New Holdings the Company and its Restricted Subsidiaries may in a single transaction make Permitted Acquisitions and may make loans or series of related transactionsadvances to, make or acquisitions (by mergeror investments in, 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) [reserved], (iii) all actions required to be taken with respect to any acquired assets or acquired or newly formed Restricted Subsidiary under subsection 7.10 shall be taken substantially simultaneously with consummation of such acquisition (or such longer period of time as provided under subsection 7.10 or as the Administrative Agent shall agree), (iv) any such newly acquired Restricted Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by subsection 8.2 and (v) with respect to any such acquisition that involves aggregate consideration in excess of $20,000,000, the Borrower Agent has delivered to the Administrative Agent a certificate of a Responsible Officer to the effect set forth in clauses (i) through (iv) 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 New Holdings) given by New Holdings and its Restricted Subsidiaries for all acquisitions of assets by non-Loan Parties or Persons that do not become a Guarantor consummated after the Effective Date in reliance on this clause (k) shall not exceed $75,000,000;
(i) Investments by New Holdings 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 pursuant to the terms of Permitted Acquisitions, PROVIDED that the consideration paid by the Company or any of its Subsidiaries in all such Person becoming a Restricted Subsidiary)transactions after the Closing Date does not exceed in the aggregate $35,000,000;
(ml) New Holdings the Company and its Restricted Subsidiaries may make loans or advances to, or acquisitions or other Investments ininvestments, Unrestricted Subsidiaries or other Persons in any Person not described in (exclusive of Persons that are, or become, Foreign Subsidiaries or FSHCOsa) that constitute or are in connection with joint ventures, provided through (ik) the amount of such loans, advances, acquisitions and Investments, when taken together with any guarantees incurred pursuant to subsection 8.4(g), shall not exceed in the aggregate the greater of (A) $75,000,000 and (B) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries and (ii) any such joint venture formed or acquired after the Effective Date shall comply with subsection 7.10(d);
(n) New Holdings 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 or FSHCOs; provided the amount of such Investments shall not exceed in the aggregate $50,000,000 at any time outstanding;
(o) New Holdings or any of its Restricted Subsidiaries may acquire obligations of one or more directors, officers, employees, members or management or consultants of any of New Holdings or its Restricted Subsidiaries in connection with such person’s acquisition of shares of the Parent, so long as no cash is actually advanced by New Holdings or any of its Restricted Subsidiaries to such persons in connection with the acquisition of any such obligations;
(p) New Holdings 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) New Holdings and its Restricted Subsidiaries may acquire assets under a Permitted Asset Swap;
(r) New Holdings and its Restricted Subsidiaries may make other Investments above in an aggregate amount not to exceed the Available Amount at such time;
(s) [Reserved];
(t) New Holdings 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 the Parent or (ii) the Net Proceeds of any substantially concurrent issuance of Capital Stock, which is not Disqualified Stock, by Parent (other than any issuance 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), 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)(iii)); provided that (x) immediately before and after making such Investment, no Default or Event of Default shall have occurred and be continuing, (y) in the case of clause (ii) in respect of an issuance by Parent, the proceeds thereof have been contributed by Parent in cash as common equity to New Holdings or such Restricted Subsidiary and (z) in the case of clause (ii), such issuance is to a Person other than a Group Member;
(u) New Holdings and its Restricted Subsidiaries may make other Investments not to exceed at any time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), together with all other Investments made in reliance on this clause (u), the greater of (i) aggregate $75,000,000 and (ii) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries15,000,000; and
(im) New Holdings and its Restricted Subsidiaries may (x) make Investments in a Receivables Subsidiary in connection with a Receivables Facility; provided that loans or advances for an aggregate amount not to exceed $1,000,000 at any such Investment in a Receivables Subsidiary is in the form of a contribution of additional accounts receivable or as customary Investments in a Receivables Subsidiary in connection with a Receivables Facility and (y) make other customary Investments in connection with a Receivables Facility and (ii) a Receivables Subsidiary may purchase accounts receivable pursuant to a Securitization Repurchase Obligation in connection with a Receivables Facility. 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 cash from such Investment (from dispositions or otherwise) (which amount referred to in this clause (y) shall not exceed the amount of such Investment at the time such Investment was made). The amount of any consideration paid for any Investment consisting of the provision of services or the transfer of non-cash assets shall be equal to the fair market value of such services or non-cash assets, as the case may be, as determined by New Holdings in good faithtime.
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 or maintain any other investment in, any Person (all of the foregoing, “Investments”), except:
(a) (i) loans or advances by New Holdings or any of its Restricted Subsidiaries in respect of intercompany accounts attributable to the operation of the Borrowers’ Borrower’s cash management system and (ii) loans or advances by New Holdings the Borrower or any of its Restricted Subsidiaries to a Borrower or Subsidiary Guarantor (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor), or to a Permitted Syndication Subsidiary for working capital needs evidenced by a Pledged Note so long as such loans or advances constitute Indebtedness of the primary obligor that is not subordinate to any other Indebtedness of such obligor;
(b) Investments by New Holdings the Borrower and its Restricted Subsidiaries may make Investments in Restricted a Permitted Syndication Subsidiary in connection with a Permitted Syndication;
(c) Investments in Subsidiaries of New Holdings the Borrower that are not Borrowers Subsidiary Guarantors (or a Subsidiary Guarantorsthat 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 Hospital; provided that at all times the aggregate amount of all such Investments at any time outstanding, together with any guarantees by New Holdings and its Restricted Subsidiaries of Indebtedness of a Restricted Subsidiary that is not a Borrower or Subsidiary Guarantor, pursuant to this clause (c) shall not exceed $50,000,0005% of the total assets of the Borrower and its Subsidiaries on a consolidated basis;
(cd) Investments by New Holdings and the Restricted SubsidiariesInvestments, not otherwise described in this subsection 8.7, in Borrowers or in Subsidiary Guarantors (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor) that otherwise are not prohibited under the terms of this Agreement;
(de) any Restricted Subsidiary of New Holdings the Borrower may make Investments in New Holdings the Borrower (by way of capital contribution or otherwise);
(ef) New Holdings Parent 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 timeFulton Bonds;
(fg) New Holdings 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 New Holdings the Borrower or any such Restricted Subsidiary not (or to exceed $10,000,000 in any physician or other health care professionals associated with or agreeing to become associated with the aggregate at Borrower or any one timeSubsidiary or any Hospital owned or leased or operated by the Borrower or any Subsidiary (“Health Care Associates”));
(gh) New Holdings the Borrower or any of its Restricted Subsidiaries may make payroll advances in the ordinary course of business;
(hi) New Holdings the Borrower or any of its Restricted Subsidiaries may acquire and hold receivables owing to itit or Parent, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (provided that nothing in this clause (i) shall prevent New Holdings 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);
(ij) New Holdings the Borrower and its Restricted Subsidiaries may make Investments in connection with asset sales permitted by subsection 8.6(e), (f) 8.6 or (g) (to which the extent permitted under such subsections and subsection 4.6(b));
(j) existing Investments described in Schedule 8.7Required Lenders consent;
(k) New Holdings Investments of the Borrower existing on the Closing Date and described in Schedule 8.7(k);
(l) the Borrower and its Restricted Subsidiaries may make Permitted Acquisitions and may make Investments in a single transaction other Persons in connection with or series pursuant to the terms of related transactionsPermitted Acquisitions; provided that at the time of, make acquisitions (by mergerand after giving effect to the consummation of, 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 such Permitted Acquisition (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) [reserved], (iii) all actions required to be taken with respect to any acquired assets or acquired or newly formed Restricted Subsidiary under subsection 7.10 shall be taken substantially simultaneously with consummation of such acquisition (or such longer period of time as provided under subsection 7.10 or as the Administrative Agent shall agree), (iv) any such newly acquired Restricted Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by subsection 8.2 and (v) with respect to any such acquisition that involves aggregate consideration in excess of $20,000,000, the Borrower Agent has delivered to the Administrative Agent a certificate of a Responsible Officer to the effect set forth in clauses (i) through (iv) 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 New Holdings) given by New Holdings and its Restricted Subsidiaries for all acquisitions of assets by non-Loan Parties or Persons that do not become a Guarantor consummated after the Effective Date in reliance on this clause (k) shall not exceed $75,000,000;
(i) Investments by New Holdings 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 the sum of any Person unrestricted cash or Cash Equivalents held by the Borrower and its Subsidiaries and the aggregate amount of Available Revolving Credit Commitments in existence at respect of which the time such Person becomes a Restricted Subsidiary pursuant conditions precedent for an Extension of Credit can then be satisfied shall be an amount equal to a Business Acquisition (provided that such Investment was not made in connection with or anticipation of such Person becoming a Restricted Subsidiary);exceeding $50,000,000.
(m) New Holdings the Borrower and its Restricted Subsidiaries may make loans Investments (i) in Subsidiaries (or advances toany Person which, or acquisitions or other Investments inas a result of such Investment, Unrestricted Subsidiaries or other Persons become a Subsidiary) (exclusive of Persons that which are, or become, Foreign Subsidiaries or FSHCOsSubsidiaries) that which constitute or are in connection with joint venturesPermitted Joint Ventures or (ii) in other Persons which are in the same line of business as the Borrower and its Subsidiaries or in a Related Business, provided that, in the case of Investments pursuant to this subclause (iii) only, after giving effect to such Investment the aggregate amount (or, in the case of any non-cash Investment, the aggregate fair market value) in each case measured as of the date of such loans, advances, acquisitions and Investments, when taken together Investment of all Investments in accordance with this subclause (ii) consummated on or after the Closing Date (net of any guarantees incurred pursuant to subsection 8.4(g), shall repayments or return of capital in respect thereof actually received in cash by the Borrower or its Subsidiaries (net of applicable taxes) after the Closing Date) does not exceed in the aggregate the greater of (A) $75,000,000 and (B) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries and (ii) any such joint venture formed or acquired after the Effective Date shall comply with subsection 7.10(d)25,000,000;
(n) New Holdings the Borrower and its Restricted 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 or FSHCOs(including new Foreign Subsidiaries); provided that the amount consideration paid by the Borrower or any of its Subsidiaries in all such Investments shall transactions after the Closing Date (net of any repayments or return of capital in respect thereof actually received in cash by the Borrower or its Subsidiaries (net of applicable taxes) after the Closing Date) does not exceed in the aggregate $50,000,000 at any time outstanding;25,000,000; and
(o) New Holdings or any of its Restricted Subsidiaries may acquire obligations of one or more directors, officers, employees, members or management or consultants of any of New Holdings or its Restricted Subsidiaries in connection with such person’s acquisition of shares of the Parent, so long as no cash is actually advanced by New Holdings or any of its Restricted Subsidiaries to such persons in connection with the acquisition of any such obligations;
(p) New Holdings 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) New Holdings and its Restricted Subsidiaries may acquire assets under a Permitted Asset Swap;
(r) New Holdings and its Restricted Subsidiaries may make other Investments in an aggregate amount not to exceed the Available Amount at such time;
(s) [Reserved];
(t) New Holdings 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 the Parent in any Securitization Subsidiary or (ii) the Net Proceeds of any substantially concurrent issuance of Capital Stock, which is not Disqualified Stock, by Parent (other than any issuance the proceeds of which have been included in the calculation of the Available Amount to the extent such proceeds have been applied Person as required pursuant to the definition of “Available Amount” to make an Investment pursuant to subsection 8.7(r), 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)(iii)); provided that (x) immediately before terms and after making such Investment, no Default or Event of Default shall have occurred and be continuing, (y) in the case of clause (ii) in respect of an issuance by Parent, the proceeds thereof have been contributed by Parent in cash as common equity to New Holdings or such Restricted Subsidiary and (z) in the case of clause (ii), such issuance is to a Person other than a Group Member;
(u) New Holdings and its Restricted Subsidiaries may make other Investments not to exceed at any time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), together with all other Investments made in reliance on this clause (u), the greater of (i) $75,000,000 and (ii) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries; and
(i) New Holdings and its Restricted Subsidiaries may (x) make Investments in a Receivables Subsidiary in connection with a Receivables Facility; provided that any such Investment in a Receivables Subsidiary is in the form of a contribution of additional accounts receivable or as customary Investments in a Receivables Subsidiary in connection with a Receivables Facility and (y) make other customary Investments in connection with a Receivables Facility and (ii) a Receivables Subsidiary may purchase accounts receivable pursuant to a Securitization Repurchase Obligation in connection with a Receivables Facility. For purposes of calculating the amount conditions 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 cash from such Investment (from dispositions or otherwise) (which amount referred to in this clause (y) shall not exceed the amount of such Investment at the time such Investment was made). The amount of any consideration paid for any Investment consisting of the provision of services or the transfer of non-cash assets shall be equal to the fair market value of such services or non-cash assets, as the case may be, as determined by New Holdings in good faithPermitted Receivables Transaction.
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 or maintain any other investment in, any Person (all of the foregoing, “Investments”), except:
(a) (i) loans or advances by New Holdings the Borrower or any of its Restricted Subsidiaries in respect of intercompany accounts attributable to the operation of the Borrowers’ Borrower's cash management system and (ii) loans or advances by New Holdings the Borrower or any of its Restricted Subsidiaries to a Borrower or Subsidiary Guarantor (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor);
(b) Investments by New Holdings the Borrower and its Restricted Subsidiaries in Restricted Subsidiaries of New Holdings the Borrower that are not Borrowers or Subsidiary Guarantors; provided that at all times the aggregate amount of all such Investments at any time outstanding, together with any guarantees by New Holdings the Borrower and its Restricted Subsidiaries of Indebtedness of a Restricted Subsidiary that is not a Borrower or Subsidiary Guarantor, shall not exceed $50,000,00025,000,000;
(c) Investments by New Holdings the Borrower and the Restricted Subsidiaries, not otherwise described in this subsection 8.7, in Borrowers the Borrower or in Subsidiary Guarantors (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor) that otherwise are not prohibited under the terms of this Agreement;
(d) any Restricted Subsidiary of New Holdings the Borrower may make Investments in New Holdings the Borrower (by way of capital contribution or otherwise);
(e) New Holdings 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) New Holdings 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 New Holdings or any such Restricted Subsidiary not to exceed $10,000,000 in the aggregate at any one time;
(g) New Holdings or any of its Restricted Subsidiaries may make payroll advances in the ordinary course of business;
(h) New Holdings or any of its Restricted Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (provided that nothing in this clause shall prevent New Holdings 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);
(i) New Holdings and its Restricted Subsidiaries may make Investments in connection with asset sales permitted by subsection 8.6(e), (f) or (g) (to the extent permitted under such subsections and subsection 4.6(b));
(j) existing Investments described in Schedule 8.7;
(k) New Holdings 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) [reserved], (iii) all actions required to be taken with respect to any acquired assets or acquired or newly formed Restricted Subsidiary under subsection 7.10 shall be taken substantially simultaneously with consummation of such acquisition (or such longer period of time as provided under subsection 7.10 or as the Administrative Agent shall agree), (iv) any such newly acquired Restricted Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by subsection 8.2 and (v) with respect to any such acquisition that involves aggregate consideration in excess of $20,000,000, the Borrower Agent has delivered to the Administrative Agent a certificate of a Responsible Officer to the effect set forth in clauses (i) through (iv) 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 New Holdings) given by New Holdings and its Restricted Subsidiaries for all acquisitions of assets by non-Loan Parties or Persons that do not become a Guarantor consummated after the Effective Date in reliance on this clause (k) shall not exceed $75,000,000;
(i) Investments by New Holdings 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) New Holdings and its Restricted Subsidiaries may make loans or advances to, or acquisitions or other Investments in, Unrestricted Subsidiaries or other Persons (exclusive of Persons that are, or become, Foreign Subsidiaries or FSHCOs) that constitute or are in connection with joint ventures, provided (i) the amount of such loans, advances, acquisitions and Investments, when taken together with any guarantees incurred pursuant to subsection 8.4(g), shall not exceed in the aggregate the greater of (A) $75,000,000 and (B) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries and (ii) any such joint venture formed or acquired after the Effective Date shall comply with subsection 7.10(d);
(n) New Holdings 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 or FSHCOs; provided the amount of such Investments shall not exceed in the aggregate $50,000,000 at any time outstanding;
(o) New Holdings or any of its Restricted Subsidiaries may acquire obligations of one or more directors, officers, employees, members or management or consultants of any of New Holdings or its Restricted Subsidiaries in connection with such person’s acquisition of shares of the Parent, so long as no cash is actually advanced by New Holdings or any of its Restricted Subsidiaries to such persons in connection with the acquisition of any such obligations;
(p) New Holdings 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) New Holdings and its Restricted Subsidiaries may acquire assets under a Permitted Asset Swap;
(r) New Holdings and its Restricted Subsidiaries may make other Investments in an aggregate amount not to exceed the Available Amount at such time;
(s) [Reserved];
(t) New Holdings 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 the Parent or (ii) the Net Proceeds of any substantially concurrent issuance of Capital Stock, which is not Disqualified Stock, by Parent (other than any issuance 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), 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)(iii)); provided that (x) immediately before and after making such Investment, no Default or Event of Default shall have occurred and be continuing, (y) in the case of clause (ii) in respect of an issuance by Parent, the proceeds thereof have been contributed by Parent in cash as common equity to New Holdings or such Restricted Subsidiary and (z) in the case of clause (ii), such issuance is to a Person other than a Group Member;
(u) New Holdings and its Restricted Subsidiaries may make other Investments not to exceed at any time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), together with all other Investments made in reliance on this clause (u), the greater of (i) $75,000,000 and (ii) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries; and
(i) New Holdings and its Restricted Subsidiaries may (x) make Investments in a Receivables Subsidiary in connection with a Receivables Facility; provided that any such Investment in a Receivables Subsidiary is in the form of a contribution of additional accounts receivable or as customary Investments in a Receivables Subsidiary in connection with a Receivables Facility and (y) make other customary Investments in connection with a Receivables Facility and (ii) a Receivables Subsidiary may purchase accounts receivable pursuant to a Securitization Repurchase Obligation in connection with a Receivables Facility. 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 cash from such Investment (from dispositions or otherwise) (which amount referred to in this clause (y) shall not exceed the amount of such Investment at the time such Investment was made). The amount of any consideration paid for any Investment consisting of the provision of services or the transfer of non-cash assets shall be equal to the fair market value of such services or non-cash assets, as the case may be, as determined by New Holdings in good faith.
Appears in 1 contract
Samples: Credit Agreement
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 or maintain any other investment in, any Person (all of the foregoing, “Investments”"INVESTMENTS"), except:
(a) (i) loans or advances by New Holdings or any of its Restricted Subsidiaries in respect of intercompany accounts attributable to the operation of the Borrowers’ Borrower's cash management system and (ii) loans or advances by New Holdings the Borrower or any of its Restricted Subsidiaries to a Borrower or Subsidiary Guarantor (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor), or to a Permitted Syndication Subsidiary for working capital needs evidenced by a Pledged Note so long as such loans or advances constitute Indebtedness of the primary obligor that is not subordinate to any other Indebtedness of such obligor;
(b) Investments by New Holdings the Borrower and its Restricted Subsidiaries may make Investments in Restricted a Permitted Syndication Subsidiary in connection with a Permitted Syndication;
(c) Investments in Subsidiaries of New Holdings the Borrower that are not Borrowers Subsidiary Guarantors (or a Subsidiary Guarantorsthat 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 Hospital; provided PROVIDED that at all times the aggregate amount of all such Investments at any time outstanding, together with any guarantees by New Holdings and its Restricted Subsidiaries of Indebtedness of a Restricted Subsidiary that is not a Borrower or Subsidiary Guarantor, pursuant to this clause (c) shall not exceed $50,000,0005% of the total assets of the Borrower and its Subsidiaries on a consolidated basis;
(cd) Investments by New Holdings and the Restricted SubsidiariesInvestments, not otherwise described in this subsection 8.7, in Borrowers or in Subsidiary Guarantors (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor) that otherwise are not prohibited under the terms of this Agreement;
(de) any Restricted Subsidiary of New Holdings the Borrower may make Investments in New Holdings the Borrower (by way of capital contribution or otherwise);
(ef) New Holdings Parent 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 timeBonds;
(fg) New Holdings 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 New Holdings the Borrower or any such Restricted Subsidiary not (or to exceed $10,000,000 in any physician or other health care professionals associated with or agreeing to become associated with the aggregate at Borrower or any one timeSubsidiary or any Hospital owned or leased or operated by the Borrower or any Subsidiary ("HEALTH CARE ASSOCIATES"));
(gh) New Holdings the Borrower or any of its Restricted Subsidiaries may make payroll advances in the ordinary course of business;
(hi) New Holdings the Borrower or any of its Restricted Subsidiaries may acquire and hold receivables owing to itit or Parent, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (provided PROVIDED that nothing in this clause (i) shall prevent New Holdings 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);
(ij) New Holdings the Borrower and its Restricted Subsidiaries may make Investments in connection with asset sales permitted by subsection 8.6(e), (f) 8.6 or (g) (to which the extent permitted under such subsections and subsection 4.6(b));
(j) existing Investments described in Schedule 8.7Required Lenders consent;
(k) New Holdings Investments of the Borrower existing on the Closing Date and described in Schedule 8.7(k);
(l) the Borrower and its Restricted Subsidiaries may make Permitted Acquisitions and may make Investments in a single transaction other Persons in connection with or series pursuant to the terms of related transactionsPermitted Acquisitions, make acquisitions (PROVIDED that the consideration paid by merger, purchase, lease (including the Borrower or any lease that contains up-front payments and/or buyout options) of its Subsidiaries in all such transactions on or otherwise) of any business, division or line of business or all or substantially all of after the outstanding Capital Stock of any corporation or other entity Closing Date (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) [reserved], (iii) all actions required to be taken with respect to any acquired assets or acquired or newly formed Restricted Subsidiary under subsection 7.10 shall be taken substantially simultaneously with consummation of such acquisition (or such longer period of time as provided under subsection 7.10 or as the Administrative Agent shall agree), (iv) any such newly acquired Restricted Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by subsection 8.2 and (v) with respect to any such acquisition that involves aggregate consideration in excess of $20,000,000, the Borrower Agent has delivered to the Administrative Agent a certificate of a Responsible Officer to the effect set forth in clauses (i) through (iv) 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 New Holdings) given by New Holdings and its Restricted Subsidiaries for all acquisitions of assets by non-Loan Parties or Persons that do not become a Guarantor consummated after the Effective Date in reliance on this clause (k) shall not exceed $75,000,000;
(i) Investments by New Holdings 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 transaction with respect to the making hospital described on Part I of such Investment Schedule 8.7(l)), 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 Subsidiaries (net of applicable taxes) on or after the Closing Date and excluding consideration delivered by the Borrower or its Subsidiaries in any Asset Exchange permitted under Section 8.6(h)), does not exceed in the aggregate, when added to (i) the principal amount of Indebtedness outstanding as permitted pursuant to subsection 8.2(k) and (ii) Investments Replacement Capital Expenditures (but excluding Replacement Capital Expenditures for the Hospitals listed on Part II 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 SubsidiarySchedule 8.7(l)), $750,000,000;
(m) New Holdings the Borrower and its Restricted Subsidiaries may make loans Investments (i) in Subsidiaries (or advances toany Person which, or acquisitions or other Investments inas a result of such Investment, Unrestricted Subsidiaries or other Persons become a Subsidiary) (exclusive of Persons that which are, or become, Foreign Subsidiaries or FSHCOsSubsidiaries) that which constitute or are in connection with joint venturesPermitted Joint Ventures or (ii) in other Persons which are in the same line of business as the Borrower and its Subsidiaries or in a Related Business, provided PROVIDED that, in the case of Investments pursuant to this subclause (iii) only, after giving effect to such Investment the aggregate amount (or, in the case of any non-cash Investment, the aggregate fair market value) in each case measured as of the date of such loans, advances, acquisitions and Investments, when taken together Investment of all Investments in accordance with this subclause (ii) consummated on or after the Closing Date (net of any guarantees incurred pursuant to subsection 8.4(g), shall repayments or return of capital in respect thereof actually received in cash by the Borrower or its Subsidiaries (net of applicable taxes) after the Closing Date) does not exceed in the aggregate the greater of (A) $75,000,000 and (B) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries and (ii) any such joint venture formed or acquired after the Effective Date shall comply with subsection 7.10(d)25,000,000;
(n) New Holdings the Borrower and its Restricted 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 or FSHCOs; provided any of its Subsidiaries in all such transactions after the amount Closing Date (net of such Investments shall any repayments or return of capital in respect thereof actually received in cash by the Borrower or its Subsidiaries (net of applicable taxes) after the Closing Date) does not exceed in the aggregate $50,000,000 at any time outstanding;25,000,000; and
(o) New Holdings or any of its Restricted Subsidiaries may acquire obligations of one or more directors, officers, employees, members or management or consultants of any of New Holdings or its Restricted Subsidiaries in connection with such person’s acquisition of shares of the Parent, so long as no cash is actually advanced by New Holdings or any of its Restricted Subsidiaries to such persons in connection with the acquisition of any such obligations;
(p) New Holdings 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) New Holdings and its Restricted Subsidiaries may acquire assets under a Permitted Asset Swap;
(r) New Holdings and its Restricted Subsidiaries may make other Investments in an aggregate amount not to exceed the Available Amount at such time;
(s) [Reserved];
(t) New Holdings 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 the Parent or (ii) the Net Proceeds of in any substantially concurrent issuance of Capital Stock, which is not Disqualified Stock, by Parent (other than any issuance 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), 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)(iii)); provided that (x) immediately before and after making such Investment, no Default or Event of Default shall have occurred and be continuing, (y) in the case of clause (ii) in respect of an issuance by Parent, the proceeds thereof have been contributed by Parent in cash as common equity to New Holdings or such Restricted Subsidiary and (z) in the case of clause (ii), such issuance is to a Person other than a Group Member;
(u) New Holdings and its Restricted Subsidiaries may make other Investments not to exceed at any time outstanding (without giving effect to the sale of an Unrestricted Securitization Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), together with all other Investments made in reliance on this clause (u), the greater of (i) $75,000,000 and (ii) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries; and
(i) New Holdings and its Restricted Subsidiaries may (x) make Investments in a reasonably necessary to consummate any Permitted Receivables Subsidiary in connection with a Receivables Facility; provided that any such Investment in a Receivables Subsidiary is in the form of a contribution of additional accounts receivable or as customary Investments in a Receivables Subsidiary in connection with a Receivables Facility and (y) make other customary Investments in connection with a Receivables Facility and (ii) a Receivables Subsidiary may purchase accounts receivable pursuant to a Securitization Repurchase Obligation in connection with a Receivables Facility. 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 cash from such Investment (from dispositions or otherwise) (which amount referred to in this clause (y) shall not exceed the amount of such Investment at the time such Investment was made). The amount of any consideration paid for any Investment consisting of the provision of services or the transfer of non-cash assets shall be equal to the fair market value of such services or non-cash assets, as the case may be, as determined by New Holdings in good faithSecuritization.
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 or maintain any other investment in, any Person (all of the foregoing, “Investments”), except:
(a) (i) loans or advances by New Holdings or any of its Restricted Subsidiaries in respect of intercompany accounts attributable to the operation of the Borrowers’ cash management system and (ii) loans or advances by New Holdings or any of its Restricted Subsidiaries to a Borrower or Subsidiary Guarantor (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor);
(b) Investments by New Holdings and its Restricted Subsidiaries in Restricted Subsidiaries of New Holdings that are not Borrowers or Subsidiary Guarantors; provided that at all times the aggregate amount of all such Investments at any time outstanding, together with any guarantees by New Holdings and its Restricted Subsidiaries of Indebtedness of a Restricted Subsidiary that is not a Borrower or Subsidiary Guarantor, shall not exceed $50,000,000;
(c) Investments by New Holdings and the Restricted Subsidiaries, not otherwise described in this subsection 8.7, in Borrowers or in Subsidiary Guarantors (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor) that otherwise are not prohibited under the terms of this Agreement;
(d) any Restricted Subsidiary of New Holdings may make Investments in New Holdings (by way of capital contribution or otherwise);
(e) New Holdings 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) New Holdings 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 New Holdings or any such Restricted Subsidiary not to exceed $10,000,000 in the aggregate at any one time;
(g) New Holdings or any of its Restricted Subsidiaries may make payroll advances in the ordinary course of business;
(h) New Holdings or any of its Restricted Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (provided that nothing in this clause shall prevent New Holdings 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);
(i) New Holdings and its Restricted Subsidiaries may make Investments in connection with asset sales permitted by subsection 8.6(e), (f) or (g) (to the extent permitted under such subsections and subsection 4.6(b));
(j) existing Investments described in Schedule 8.7;
(k) New Holdings 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) [reserved], (iii) all actions required to be taken with respect to any acquired assets or acquired or newly formed Restricted Subsidiary under subsection 7.10 shall be taken substantially simultaneously with consummation of such acquisition (or such longer period of time as provided under subsection 7.10 or as the Administrative Agent shall agree), (iv) any such newly acquired Restricted Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by subsection 8.2 and (v) with respect to any such acquisition that involves aggregate consideration in excess of $20,000,000, the Borrower Agent has delivered to the Administrative Agent a certificate of a Responsible Officer to the effect set forth in clauses (i) through (iv) 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 New Holdings) given by New Holdings and its Restricted Subsidiaries for all acquisitions of assets by non-Loan Parties or Persons that do not become a Guarantor consummated after the Effective Date in reliance on this clause (k) shall not exceed $75,000,000;
(il) Investments by New Holdings 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) New Holdings and its Restricted Subsidiaries may make loans or advances to, or acquisitions or other Investments in, Unrestricted Subsidiaries or other Persons (exclusive of Persons that are, or become, Foreign Subsidiaries or FSHCOs) that constitute or are in connection with joint ventures, provided (i) the amount of such loans, advances, acquisitions and Investments, when taken together with any guarantees incurred pursuant to subsection 8.4(g), shall not exceed in the aggregate the greater of (A) $75,000,000 and (B) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries and (ii) any such joint venture formed or acquired after the Effective Date shall comply with subsection 7.10(d);
(n) New Holdings 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 or FSHCOs; provided the amount of such Investments shall not exceed in the aggregate $50,000,000 at any time outstanding;
(o) New Holdings or any of its Restricted Subsidiaries may acquire obligations of one or more directors, officers, employees, members or management or consultants of any of New Holdings or its Restricted Subsidiaries in connection with such person’s acquisition of shares of the Parent, so long as no cash is actually advanced by New Holdings or any of its Restricted Subsidiaries to such persons in connection with the acquisition of any such obligations;
(p) New Holdings 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) New Holdings and its Restricted Subsidiaries may acquire assets under a Permitted Asset Swap;
(r) New Holdings and its Restricted Subsidiaries may make other Investments in an aggregate amount not to exceed the Available Amount at such time;
(s) [Reserved];
(t) New Holdings 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 the Parent or (ii) the Net Proceeds of any substantially concurrent issuance of Capital Stock, which is not Disqualified Stock, by Parent (other than any issuance 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), 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)(iii)); provided that (x) immediately before and after making such Investment, no Default or Event of Default shall have occurred and be continuing, (y) in the case of clause (ii) in respect of an issuance by Parent, the proceeds thereof have been contributed by Parent in cash as common equity to New Holdings or such Restricted Subsidiary and (z) in the case of clause (ii), such issuance is to a Person other than a Group Member;
(u) New Holdings and its Restricted Subsidiaries may make other Investments not to exceed at any time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), together with all other Investments made in reliance on this clause (u), the greater of (i) $75,000,000 and (ii) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries; and
(iv) New Holdings and its Restricted Subsidiaries may (x) make Investments in a Receivables Subsidiary in connection with a Receivables Facility; provided that any such Investment in a Receivables Subsidiary is in the form of a contribution of additional accounts receivable or as customary Investments in a Receivables Subsidiary in connection with a Receivables Facility and (y) make other customary Investments in connection with a Receivables Facility and (ii) a Receivables Subsidiary may purchase accounts receivable pursuant to a Securitization Repurchase Obligation in connection with a Receivables Facility. 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 cash from such Investment (from dispositions or otherwise) (which amount referred to in this clause (y) shall not exceed the amount of such Investment at the time such Investment was made). The amount of any consideration paid for any Investment consisting of the provision of services or the transfer of non-cash assets shall be equal to the fair market value of such services or non-cash assets, as the case may be, as determined by New Holdings in good faith.
Appears in 1 contract
Samples: 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, or make or maintain any other investment in, any Person (all of the foregoing, “Investments”), except:
(a) (i) loans or advances by New Holdings or any of its Restricted Subsidiaries in respect of intercompany accounts attributable to the operation of the Borrowers’ cash management system and (ii) loans or advances by New Holdings or any of its Restricted Subsidiaries 118 AMERICAS 94977503 to a Borrower or Subsidiary Guarantor (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor);
(b) Investments by New Holdings and its Restricted Subsidiaries in Restricted Subsidiaries of New Holdings that are not Borrowers or Subsidiary Guarantors; provided that at all times the aggregate amount of all such Investments at any time outstanding, together with any guarantees by New Holdings and its Restricted Subsidiaries of Indebtedness of a Restricted Subsidiary that is not a Borrower or Subsidiary Guarantor, shall not exceed $50,000,00010,000,000;
(c) Investments by New Holdings and the Restricted Subsidiaries, not otherwise described in this subsection Section 8.7, in Borrowers or in Subsidiary Guarantors (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor) that otherwise are not prohibited under the terms of this Agreement;
(d) any Restricted Subsidiary of New Holdings may make Investments in New Holdings (by way of capital contribution or otherwise);
(e) New Holdings 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) New Holdings 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 New Holdings or any such Restricted Subsidiary not to exceed $10,000,000 in the aggregate at any one time;
(g) New Holdings or any of its Restricted Subsidiaries may make payroll advances in the ordinary course of business;
(h) New Holdings or any of its Restricted Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (provided that nothing in this clause shall prevent New Holdings 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);
(i) New Holdings and its Restricted Subsidiaries may make Investments in connection with asset sales Asset Sales permitted by subsection Section 8.6(e), (f) or (g) (or to which the extent permitted under such subsections and subsection 4.6(b))Required Lenders consent;
(j) existing Investments described in Schedule 8.7;
(k) New Holdings 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 119 AMERICAS 94977503 from the making of such acquisition), (ii) [reserved]as of the date of such acquisition, the Consolidated First Lien 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)) is less than or equal to the greater of (A) the Consolidated First Lien Net Leverage Ratio as of the last day of the most recently ended fiscal quarter and (B) 5.00 to 1.00, (iii) all actions required to be taken with respect to any acquired assets or acquired or newly formed Restricted Subsidiary under subsection Section 7.10 shall be taken substantially simultaneously with consummation of such acquisition (or such longer period of time as provided under subsection Section 7.10 or as the Administrative Agent shall agree), (iv) any such newly acquired Restricted Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by subsection Section 8.2 and (v) with respect to any such acquisition that involves aggregate consideration in excess of $20,000,000, the Borrower Agent has delivered to the Administrative Agent a certificate of a Responsible Officer to the effect set forth in clauses (i) through (iv) 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 New Holdings) given by New Holdings and its Restricted Subsidiaries for all acquisitions of assets by non-Loan Parties or Persons that do not become a Guarantor consummated after the Effective Date in reliance on this clause (k) shall not exceed $75,000,000;
(i) Investments by New Holdings 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 Section 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) New Holdings and its Restricted Subsidiaries may make loans or advances to, or acquisitions or other Investments in, Unrestricted Subsidiaries or other Persons (exclusive of Persons that which are, or become, Foreign Subsidiaries or FSHCOsSubsidiaries) that constitute or are in connection with joint ventures, provided (i) the amount of such loans, advances, acquisitions and Investments, when taken together with any guarantees incurred pursuant to subsection 8.4(g), Investments shall not exceed in the aggregate the greater of (A) $75,000,000 30,000,000 at any time outstanding for Investments made with cash or Cash Equivalents and (B) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries $20,000,000 at any time outstanding for other Investments and (ii) any such joint venture formed or acquired after the Effective Date shall comply with subsection Section 7.10(d);
(n) New Holdings 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 or FSHCOsSubsidiaries; provided the amount of such Investments shall not exceed in the aggregate $50,000,000 5,000,000 at any time outstanding;
(o) New Holdings or any of its Restricted Subsidiaries may acquire obligations of one or more directors, officers, employees, members or management or consultants of any of New Holdings or its Restricted Subsidiaries in connection with such person’s acquisition of shares of the Parent, so long as no cash is actually advanced by New Holdings or any of its Restricted Subsidiaries to such persons in connection with the acquisition of any such obligations;
(p) New Holdings and its Restricted Subsidiaries may acquire assets constituting a Permitted Reinvestment with the Net Proceeds from Asset Sales in accordance with the reinvestment rights provided under subsection Section 4.6(b)) of the Term Loan Credit Agreement;
(q) New Holdings and its Restricted Subsidiaries may acquire assets under a Permitted Asset Swap;; 120 AMERICAS 94977503
(r) New Holdings and its Restricted Subsidiaries may make other Investments in an aggregate amount not to exceed so long as immediately before and after making such Investment, the Available Amount at such timePayment Conditions shall be satisfied;
(s) [Reserved]New Holdings and its Subsidiaries may consummate the transactions contemplated by the Merlin Asset Purchase Agreement;
(t) New Holdings 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 the Parent or (ii) the Net Proceeds of any substantially concurrent issuance of Capital Stock, which is not Disqualified Stock, by Parent (other than any issuance 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), have been applied for Restricted Payments under subsection Section 8.8(c) or subsection Section 8.8(h) or have been applied for prepayments of Indebtedness under subsection Section 8.15(b)(iii)); provided that that, (x) immediately before and after making such Investment, no Default or Event of Default shall have occurred and be continuing, (y) in the case of clause (ii) in respect of an issuance by Parent, the proceeds thereof have been contributed by Parent in cash as common equity to New Holdings or such Restricted Subsidiary and (z) in the case of clause (ii), such issuance is to a Person other than a Group Member;
(u) New Holdings and its Restricted Subsidiaries may make other Investments not to exceed at any time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities)outstanding, together with all other Investments made in reliance on this clause (u), the greater of $50,000,000;
(iv) $75,000,000 and (ii) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries[Reserved]; and
(iw) New Holdings and its Restricted Subsidiaries may (x) make the Investments in a Receivables Subsidiary in connection with a Receivables Facility; provided that any such Investment in a Receivables Subsidiary is in contemplated by the form of a contribution of additional accounts receivable or as customary Investments in a Receivables Subsidiary in connection with a Receivables Facility and (y) make other customary Investments in connection with a Receivables Facility and (ii) a Receivables Subsidiary may purchase accounts receivable pursuant to a Securitization Repurchase Obligation in connection with a Receivables FacilityRestructuring Transactions. 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 cash from such Investment (from dispositions or otherwise) (which amount referred to in this clause (y) shall not exceed the amount of such Investment at the time such Investment was made). The amount of any consideration paid for any Investment consisting of the provision of services or the transfer of non-cash assets shall be equal to the fair market value of such services or non-cash assets, as the case may be, as determined by New Holdings in good faith.
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 or maintain any other investment in, any Person (all of the foregoing, “Investments”an "Investment"), except:except (without duplication):
(a) (i) loans or advances by New Holdings or any extensions of its Restricted Subsidiaries in respect trade credit and endorsements of intercompany accounts attributable to the operation of the Borrowers’ cash management system negotiable instruments and (ii) loans or advances by New Holdings or any of its Restricted Subsidiaries to a Borrower or Subsidiary Guarantor (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor);
(b) Investments by New Holdings and its Restricted Subsidiaries in Restricted Subsidiaries of New Holdings that are not Borrowers or Subsidiary Guarantors; provided that at all times the aggregate amount of all such Investments at any time outstanding, together with any guarantees by New Holdings and its Restricted Subsidiaries of Indebtedness of a Restricted Subsidiary that is not a Borrower or Subsidiary Guarantor, shall not exceed $50,000,000;
(c) Investments by New Holdings and the Restricted Subsidiaries, not otherwise described in this subsection 8.7, in Borrowers or in Subsidiary Guarantors (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor) that otherwise are not prohibited under the terms of this Agreement;
(d) any Restricted Subsidiary of New Holdings may make Investments in New Holdings (by way of capital contribution or otherwise);
(e) New Holdings 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) New Holdings 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 New Holdings or any such Restricted Subsidiary not to exceed $10,000,000 in the aggregate at any one time;
(g) New Holdings or any of its Restricted Subsidiaries may make payroll advances negotiable documents in the ordinary course of business;
(hb) New Holdings Investments in Cash Equivalents;
(c) loans and advances to employees and directors of Holdings, the Borrower or any of its Restricted Subsidiaries may acquire for travel, entertainment and hold receivables owing to it, if created or acquired relocation expenses in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (provided that nothing in this clause shall prevent New Holdings 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);
(i) New Holdings and its Restricted Subsidiaries may make Investments in connection with asset sales permitted by subsection 8.6(e), (f) or (g) (to the extent permitted under such subsections and subsection 4.6(b));
(j) existing Investments described in Schedule 8.7;
(k) New Holdings 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 an aggregate amount 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) [reserved], (iii) all actions required to be taken with respect to any acquired assets or acquired or newly formed Restricted Subsidiary under subsection 7.10 shall be taken substantially simultaneously with consummation of such acquisition (or such longer period of time as provided under subsection 7.10 or as the Administrative Agent shall agree), (iv) any such newly acquired Restricted Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by subsection 8.2 and (v) with respect to any such acquisition that involves aggregate consideration in excess of $20,000,000Holdings, the Borrower Agent has delivered to the Administrative Agent a certificate of a Responsible Officer to the effect set forth in clauses (i) through (iv) 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 New Holdings) given by New Holdings and its Restricted Subsidiaries for all acquisitions of assets by non-Loan Parties or Persons that do not become a Guarantor consummated after the Effective Date in reliance on this clause (k) shall not to exceed $75,000,000;
(i) Investments by New Holdings 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) New Holdings and its Restricted Subsidiaries may make loans or advances to, or acquisitions or other Investments in, Unrestricted Subsidiaries or other Persons (exclusive of Persons that are, or become, Foreign Subsidiaries or FSHCOs) that constitute or are in connection with joint ventures, provided (i) the amount of such loans, advances, acquisitions and Investments, when taken together with any guarantees incurred pursuant to subsection 8.4(g), shall not exceed in the aggregate the greater of (A) $75,000,000 and (B) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries and (ii) any such joint venture formed or acquired after the Effective Date shall comply with subsection 7.10(d);
(n) New Holdings 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 or FSHCOs; provided the amount of such Investments shall not exceed in the aggregate $50,000,000 500,000 at any time outstanding;
(od) New Holdings Investments by (i) the Borrower in its Domestic Subsidiaries, (ii) any Domestic Subsidiaries in the Borrower or in any other Domestic Subsidiary, (iii) any Foreign Subsidiary in any other Foreign Subsidiary or (iv) 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 New Holdings or its Restricted Domestic Subsidiaries in connection with such person’s acquisition of shares of Foreign Subsidiaries in an amount for this clause (iv) not to exceed at any one time outstanding (x) $2,000,000 plus (y) at the Parent, so long as no cash is actually advanced by New Holdings or time made any of its Restricted Subsidiaries to such persons in connection with the acquisition of any such obligations;
(p) New Holdings and its Restricted Subsidiaries may acquire assets with the Net Available Excess Equity Proceeds from Asset Sales in accordance with the reinvestment rights provided under subsection 4.6(b);
(q) New Holdings and its Restricted Subsidiaries may acquire assets under a Permitted Asset Swap;
(r) New Holdings and its Restricted Subsidiaries may make other Investments in an aggregate amount not to exceed the Available Amount at such time$10,000,000;
(se) [Reserved]securities and other Investments held by the Borrower or any of its Subsidiaries prior to the Closing Date and listed on Schedule 7.9(e);
(tf) New advances by the Borrower to Holdings, in lieu of the payment of cash dividends, to enable Holdings and its Restricted Subsidiaries may to make Investments the payments contemplated by subsection 7.7, provided that, if such advances are made with respect to the payments contemplated by subsection 7.7(a) or 7.7(b), such advances are used to make such payments within fifteen Business Days after such advances are made;
(g) Permitted Acquisitions in an aggregate amount not to exceed (i) the Permitted Acquisition Amount plus (ii) at the time made, any Available Excess Equity Proceeds plus (iii) any consideration paid in equity securities of Holdings;
(h) repurchases of Senior Subordinated Notes to the extent the consideration paid therefor consists solely of permitted under subsection 7.10;
(i) Capital Stock, which is not Disqualified Stock, of the Parent or (ii) the Net Proceeds of any substantially concurrent issuance of Capital Stock, which is not Disqualified Stock, by Parent (other than any issuance 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), 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)(iii))Rate Protection Agreements; provided that (x) immediately before and after making such Investment, no Default or Event of Default shall have occurred and be continuing, (y) in the case of clause (ii) in respect of an issuance by Parent, the proceeds thereof have been contributed by Parent in cash as common equity to New Holdings or such Restricted Subsidiary and (z) in the case of clause (ii), such issuance is to a Person other than a Group Member;and
(uj) New Holdings and its Restricted Subsidiaries may make other Investments not to exceed at any time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), together with all other Investments made in reliance on this clause (u), the greater of $1,000,000 plus (i) $75,000,000 any returns of or on such Investments and (ii) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries; and
(i) New Holdings and its Restricted Subsidiaries may (x) make Investments in a Receivables Subsidiary in connection with a Receivables Facility; provided that any such Investment in a Receivables Subsidiary is in the form of a contribution of additional accounts receivable or as customary Investments in a Receivables Subsidiary in connection with a Receivables Facility and (y) make other customary Investments in connection with a Receivables Facility and (ii) a Receivables Subsidiary may purchase accounts receivable pursuant to a Securitization Repurchase Obligation in connection with a Receivables Facility. 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 cash from such Investment (from dispositions or otherwise) (which amount referred to in this clause (y) shall not exceed the amount of such Investment at the time such Investment was made). The amount of any consideration paid for any Investment consisting of the provision of services or the transfer of non-cash assets shall be equal to the fair market value of such services or non-cash assets, as the case may be, as determined by New Holdings in good faithAvailable Excess Equity Proceeds.
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 or maintain any other investment in, any Person (all of the foregoing, “Investments”)Person, except:
(a) (i) loans or advances by New Holdings or any of its Restricted Subsidiaries in respect of intercompany accounts attributable to the operation of the Borrowers’ Company's cash management system and (ii) loans or advances by New Holdings the Company or any of its Restricted Subsidiaries to a Borrower or Subsidiary Guarantor (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor), or to a First-Tier Permitted Minority-Interest Radio Subsidiary for working capital needs evidenced by a Pledged Note so long as such loans or advances constitute Indebtedness of the primary obligor that is not subordinate to any other Indebtedness of such obligor;
(b) Investments by New Holdings in Permitted Minority-Interest Subsidiaries described in CLAUSES (A) and its Restricted Subsidiaries (B) of the definition of "Permitted Minority-Interest Subsidiary" in Restricted an aggregate amount not to exceed (i) $40,000,000 over the term of this Agreement and (ii) $20,000,000 outstanding at any one time;
(c) Investments in Subsidiaries of New Holdings the Company (including Permitted Minority-Interest Subsidiaries) that are not Borrowers Subsidiary Guarantors (or a Subsidiary Guarantorsthat 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 PROVIDED that at all times the aggregate amount of all such Investments at any time outstanding, together with any guarantees by New Holdings and its Restricted Subsidiaries of Indebtedness of a Restricted Subsidiary that is not a Borrower or Subsidiary Guarantor, shall not exceed $50,000,000;five percent (5%) of the total assets of the Company and its Subsidiaries on a consolidated basis; and
(cd) Investments by New Holdings and the Restricted SubsidiariesInvestments, not otherwise described in this subsection 8.713.7, in Borrowers or in Subsidiary Guarantors (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor) that otherwise are not prohibited under the terms of this Agreement;.
(de) Intermediate Holding and any Restricted Subsidiary of New Holdings the Company may make Investments investments in New Holdings the Company (by way of capital contribution or otherwise);
(ef) New Holdings Intermediate Holding and its Restricted Subsidiaries may invest in, acquire and hold (i) Cash Equivalents and other 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 50,000 per individual institution account and $25,000,000 500,000 in the aggregate at any one time;
(fg) New Holdings 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 New Holdings the Company or any such Restricted Subsidiary not to exceed $10,000,000 in the aggregate at any one timeSubsidiary;
(gh) New Holdings the Company or any of its Restricted Subsidiaries may make payroll advances in the ordinary course of business;
(hi) New Holdings the Company or any of its Restricted Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (provided PROVIDED that nothing in this clause (i) shall prevent New Holdings the Company 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);
(ij) New Holdings the Company and its Restricted Subsidiaries may make Investments investments in connection with asset sales permitted by subsection 8.6(e), (f) 13.6 or (g) (to which the extent permitted under such subsections and subsection 4.6(b));
(j) existing Investments described in Schedule 8.7Required Lenders consent;
(k) New Holdings 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 existing investments of the outstanding Capital Stock of any corporation or other entity Company described in Schedule 13.7 (other than any director’s qualifying shares or any options for equity interests that cannot, as a matter of law, such Schedule may be cancelled, redeemed or otherwise extinguished without updated on 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) [reserved], (iii) all actions required to be taken with respect to any acquired assets or acquired or newly formed Restricted Subsidiary under subsection 7.10 shall be taken substantially simultaneously with consummation of such acquisition (or such longer period of time as provided under subsection 7.10 or as the Administrative Agent shall agree), (iv) any such newly acquired Restricted Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by subsection 8.2 and (v) with respect to any such acquisition that involves aggregate consideration in excess of $20,000,000, the Borrower Agent has delivered to the Administrative Agent a certificate of a Responsible Officer to the effect set forth in clauses (i) through (iv) 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 New Holdings) given by New Holdings and its Restricted Subsidiaries for all acquisitions of assets by non-Loan Parties or Persons that do not become a Guarantor consummated after the Effective Closing Date in reliance on this clause (k) shall not exceed $75,000,000accordance with subsection 16.1);
(il) Investments by New Holdings the Company and any Restricted its Subsidiaries in any businessmay make Permitted Acquisitions and may make loans or advances to, divisionor acquisitions or investments in, 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 other Persons in connection with or anticipation pursuant to the terms of such Person becoming a Restricted Subsidiary)Permitted Acquisitions;
(m) New Holdings the Company and its Restricted Subsidiaries may make loans or advances to, or acquisitions or other Investments investments in, Unrestricted Subsidiaries or other Persons (exclusive of Persons that which are, or become, Foreign Subsidiaries or FSHCOsSubsidiaries) that constitute or are in connection with joint venturesPermitted Joint Ventures, provided PROVIDED the consideration paid by the Company or any of its Subsidiaries in all such transactions after the Closing Date (i) net, in the amount case of such loans, advances, acquisitions investments and Investmentsother transfers, when taken together with of any guarantees incurred pursuant to subsection 8.4(g), shall 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 the greater of (Aa) $75,000,000 40,000,000 over the term of this Agreement and (Bb) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries and (ii) $20,000,000 outstanding at any such joint venture formed or acquired after the Effective Date shall comply with subsection 7.10(d)one time;
(n) New Holdings the Company and its Restricted Subsidiaries may make loans or advances to, or other Investments 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 Company or FSHCOs; provided any of its Subsidiaries in all transactions after the amount Closing Date (net, in the case of such Investments shall loans, advances, 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 $50,000,000 at any time outstanding2,000,000;
(o) New Holdings or any of the Company and its Restricted Subsidiaries may acquire obligations of one or more directors, officers, employees, members or management or consultants of any of New Holdings or its Restricted Subsidiaries investments in ISPs and Internet Companies in connection with such person’s acquisition of shares of the Parent, so long as no cash is actually advanced Internet Trade Out Transactions permitted by New Holdings or any of its Restricted Subsidiaries to such persons in connection with the acquisition of any such obligations;subsection 13.15; and
(p) New Holdings 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) New Holdings and its Restricted Subsidiaries may acquire assets under a Permitted Asset Swap;
(r) New Holdings and its Restricted Subsidiaries Intermediate Holding may make other Investments additional cash investments in an aggregate amount not to exceed the Available Amount at such time;
(s) [Reserved];
(t) New Holdings Company after the Closing Date and its Restricted Subsidiaries may make Investments to the extent the consideration paid therefor consists solely of as long as (i) Capital Stock, which is not Disqualified Stock, of the Parent or such investments are evidenced by (iiA) the Net Proceeds of any substantially concurrent issuance of Capital Stock, which is not Disqualified Stock, by Parent (other than any issuance the proceeds of which have been included in the calculation of the Available Amount subordinated notes having terms that are at least as favorable to the extent such proceeds have been applied pursuant Credit Parties and the Lenders as is the Company Subordinated Intercompany Note, (B) non-mandatorily redeemable common stock and/or (C) preferred stock having terms satisfactory to the definition of “Available Amount” to make an Investment pursuant to subsection 8.7(r), 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)(iii)); provided that (x) immediately before and after making such Investment, no Default or Event of Default shall have occurred and be continuing, (y) in the case of clause (ii) in respect of an issuance by Parent, the proceeds thereof have been contributed by Parent in cash as common equity to New Holdings or such Restricted Subsidiary and (z) in the case of clause (ii), such issuance is to a Person other than a Group Member;
(u) New Holdings and its Restricted Subsidiaries may make other Investments not to exceed at any time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), together with all other Investments made in reliance on this clause (u), the greater of (i) $75,000,000 Administrative Agent and (ii) 4% Intermediate Holdings funds such investments from additional investments made by HoldCo in Intermediate Holding and such investments by HoldCo are evidenced by and constitute the proceeds of (A) subordinated notes having terms substantially comparable to the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries; and
Subordinated HoldCo Debentures or having terms reasonably satisfactory to the Administrative Agent issued to MBO-VII, MBO-VIII or any other subordinated debt and/or equity fund which is an FL Affiliate, (iB) New Holdings and its Restricted Subsidiaries may preferred stock having terms reasonably satisfactory to the Administrative Agent and/or (xC) make Investments in a Receivables Subsidiary in connection with a Receivables Facility; provided non-mandatorily redeemable common stock (it being agreed that any such Investment in a Receivables Subsidiary is in instrument or stock certificate issued to Intermediate Holding or HoldCo shall be pledged to the form of a contribution of additional accounts receivable or as customary Investments in a Receivables Subsidiary in connection with a Receivables Facility and (y) make other customary Investments in connection with a Receivables Facility and (ii) a Receivables Subsidiary may purchase accounts receivable Administrative Agent pursuant to a Securitization Repurchase Obligation in connection with a Receivables Facility. 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 cash from such Investment (from dispositions or otherwise) (which amount referred to in this clause (y) shall not exceed the amount of such Investment at the time such Investment was madeapplicable Pledge Agreement). The amount of any consideration paid for any Investment consisting of the provision of services or the transfer of non-cash assets shall be equal to the fair market value of such services or non-cash assets, as the case may be, as determined by New Holdings in good faith.
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, any Person (all of the foregoing, “Investments”)Person, except:
(a) (i) loans or advances by New Holdings or any extensions of its Restricted Subsidiaries trade credit in respect the ordinary course of intercompany accounts attributable to the operation of the Borrowers’ cash management system and (ii) loans or advances by New Holdings or any of its Restricted Subsidiaries to a Borrower or Subsidiary Guarantor (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor)business;
(b) Investments by New Holdings and its Restricted Subsidiaries investments in Restricted Subsidiaries of New Holdings that are not Borrowers or Subsidiary Guarantors; provided that at all times the aggregate amount of all such Investments at any time outstanding, together with any guarantees by New Holdings and its Restricted Subsidiaries of Indebtedness of a Restricted Subsidiary that is not a Borrower or Subsidiary Guarantor, shall not exceed $50,000,000Cash Equivalents;
(c) Investments loans or advances to officers or employees to pay relocation costs of such officers or employees in connection with their employment by New Holdings and the Restricted Subsidiaries, not otherwise described in this subsection 8.7, in Borrowers or in Subsidiary Guarantors (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse any of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor) that otherwise are not prohibited under the terms of this Agreementits Subsidiaries;
(d) any Restricted Subsidiary notes, securities or other instruments received as consideration for any sale of New Holdings may make Investments assets permitted hereunder in New Holdings (by way an aggregate amount not to exceed $500,000 in any fiscal year of capital contribution or otherwise)the Borrower;
(e) New Holdings and its Restricted Subsidiaries may invest inany notes, acquire and hold 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) Cash Equivalents investments by the Borrower in its Subsidiaries which are or, immediately after giving effect thereto, become parties to the Guarantee and cash Collateral Agreement and the Capital Stock of which is pledged to the Agent to secure the Borrower's obligations hereunder and under the other Loan Documents, (ii) other cash equivalents invested in or held with any financial institutions investments by Subsidiaries of the Borrower which are not parties to the extent such amounts under this clause Guarantee and Collateral Agreement in other Subsidiaries of the Borrower, (iiiii) do 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 Mascot and King-O- Matic in an aggregate amount not exceed exceeding $5,000,000 per individual institution and $25,000,000 in the aggregate at any one time;
(f) New Holdings 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 New Holdings or any such Restricted Subsidiary not to exceed $10,000,000 in the aggregate at any one time;
(g) New Holdings or any of its Restricted Subsidiaries may make payroll advances in the ordinary course of business;
(h) New Holdings or 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 of its Restricted Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (provided that nothing in this clause one time shall prevent New Holdings 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)not exceed $100,000;
(i) New Holdings acquisitions by the Borrower and its Restricted Subsidiaries may make Investments 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 connection accordance with asset sales permitted by subsection 8.6(e)applicable Requirements of Law; (ii) the total consideration for each such acquisition shall not exceed $10,000,000; (iii) each such acquisition, in the case of an acquisition of Capital Stock, shall result in such corporation or Person becoming a Subsidiary; (fiv) after giving effect to any such acquisition, no Default or Event of Default shall have occurred and be continuing; and (gv) (the Borrower shall have delivered to the extent permitted under 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 subsections and subsection 4.6(b))acquisition had occurred on or prior to the first day of the four fiscal quarter period ended with such most recently ended fiscal quarter;
(j) existing Investments described in Schedule 8.7;
(k) New Holdings acquisitions by the Borrower and its Restricted Subsidiaries may Subsidiaries, for cash or other consideration exceeding $10,000,000 in a single transaction the aggregate, of one or series of related transactions, make acquisitions (by merger, purchase, lease (including any lease that contains up-front payments and/or buyout options) more companies or otherwise) of any business, division or line businesses engaged in the same general type of business or all or substantially all of as is conducted by the outstanding Capital Stock of any corporation or other entity (other than any director’s qualifying shares or any options for equity interests Borrower and its Subsidiaries; PROVIDED 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 any such Acquisition shall be subject to the consent of the Required Lenders, (ii) each such acquisition and all transactions related thereto shall be consummated in accordance with applicable Requirements of Law, (iii) each such acquisition, in the case of an acquisition of Capital Stock, shall result in such corporation or Person becoming a Subsidiary, (iv) after giving effect theretoto any such acquisition, 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) [reserved], (iii) all actions required to be taken with respect to any acquired assets or acquired or newly formed Restricted Subsidiary under subsection 7.10 shall be taken substantially simultaneously with consummation of such acquisition (or such longer period of time as provided under subsection 7.10 or as the Administrative Agent shall agree), (iv) any such newly acquired Restricted Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by subsection 8.2 and (v) 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 any which financial statements have been delivered pursuant to subsection 7.1 if each such acquisition that involves aggregate consideration in excess of $20,000,000, the Borrower Agent has delivered had occurred on or prior to the Administrative Agent a certificate first day of a Responsible Officer the four fiscal quarter period ended with such most recently ended fiscal quarter (it being understood that the information about such acquisition must be reasonably satisfactory in form and substance to the effect set forth in clauses (i) through (iv) 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 New Holdings) given by New Holdings and its Restricted Subsidiaries for all acquisitions of assets by non-Loan Parties or Persons that do not become a Guarantor consummated after the Effective Date in reliance on this clause (k) shall not exceed $75,000,000;
(i) Investments by New Holdings 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 SubsidiaryRequired Lenders);
(mk) New Holdings investments existing on the Closing Date and its Restricted Subsidiaries may make loans or advances to, or acquisitions or other Investments in, Unrestricted Subsidiaries or other Persons (exclusive of Persons that are, or become, Foreign Subsidiaries or FSHCOs) that constitute or are in connection with joint ventures, provided (i) the amount of such loans, advances, acquisitions and Investments, when taken together with any guarantees incurred pursuant to subsection 8.4(g), shall not exceed in the aggregate the greater of (A) $75,000,000 and (B) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries and (ii) any such joint venture formed or acquired after the Effective Date shall comply with subsection 7.10(d);
(n) New Holdings 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 or FSHCOs; provided the amount of such Investments shall not exceed in the aggregate $50,000,000 at any time outstanding;
(o) New Holdings or any of its Restricted Subsidiaries may acquire obligations of one or more directors, officers, employees, members or management or consultants of any of New Holdings or its Restricted Subsidiaries in connection with such person’s acquisition of shares of the Parent, so long as no cash is actually advanced by New Holdings or any of its Restricted Subsidiaries to such persons in connection with the acquisition of any such obligations;
(p) New Holdings 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) New Holdings and its Restricted Subsidiaries may acquire assets under a Permitted Asset Swap;
(r) New Holdings and its Restricted Subsidiaries may make other Investments in an aggregate amount not to exceed the Available Amount at such time;
(s) [Reserved];
(t) New Holdings 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 the Parent or (ii) the Net Proceeds of any substantially concurrent issuance of Capital Stock, which is not Disqualified Stock, by Parent (other than any issuance 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), 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)(iii)); provided that (x) immediately before and after making such Investment, no Default or Event of Default shall have occurred and be continuing, (y) in the case of clause (ii) in respect of an issuance by Parent, the proceeds thereof have been contributed by Parent in cash as common equity to New Holdings or such Restricted Subsidiary and (z) in the case of clause (ii), such issuance is to a Person other than a Group Member;
(u) New Holdings and its Restricted Subsidiaries may make other Investments not to exceed at any time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), together with all other Investments made in reliance set forth on this clause (u), the greater of (i) $75,000,000 and (ii) 4% of the Consolidated Total Assets of New Holdings and its Restricted SubsidiariesSchedule 8.10; and
(il) New Holdings and investments not permitted by the foregoing clauses of this 8.10 by the Borrower or its Restricted Subsidiaries may (x) make Investments in a Receivables Subsidiary in connection with a Receivables Facility; provided that any Person which the Borrower and/or its Subsidiaries owns, or immediately after giving effect to such Investment in a Receivables Subsidiary is in the form of a contribution of additional accounts receivable or as customary Investments in a Receivables Subsidiary in connection with a Receivables Facility and (y) make other customary Investments in connection with a Receivables Facility and (ii) a Receivables Subsidiary may purchase accounts receivable pursuant to a Securitization Repurchase Obligation in connection with a Receivables Facility. For purposes of calculating the amount of any Investmentinvestment will own, 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 cash from such Investment (from dispositions or otherwise) (which amount referred to in this clause (y) shall not exceed the amount more than 20% of such Investment at the time such Investment was made). The amount of any consideration paid for any Investment consisting of the provision of services or the transfer of non-cash assets shall be equal to the fair market value of such services or non-cash assetsPerson's outstanding voting Capital Stock (but which Person is not, as the case may and will not be, as determined by New Holdings after giving effect to such investment, a Subsidiary) in good faithan aggregate principal amount at any one time not to exceed $3,000,000.
Appears in 1 contract
Samples: Revolving Credit Agreement (Aftermarket Technology 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, of or any assets constituting all or a material part of a business unit of, or make or maintain any other investment in, any Person (all of the foregoing, “Investments”)Person, except:
(a) (i) loans or advances by New Holdings or any extensions of its Restricted Subsidiaries in respect of intercompany accounts attributable to the operation of the Borrowers’ cash management system and (ii) loans or advances by New Holdings or any of its Restricted Subsidiaries to a Borrower or Subsidiary Guarantor (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor);
(b) Investments by New Holdings and its Restricted Subsidiaries in Restricted Subsidiaries of New Holdings that are not Borrowers or Subsidiary Guarantors; provided that at all times the aggregate amount of all such Investments at any time outstanding, together with any guarantees by New Holdings and its Restricted Subsidiaries of Indebtedness of a Restricted Subsidiary that is not a Borrower or Subsidiary Guarantor, shall not exceed $50,000,000;
(c) Investments by New Holdings and the Restricted Subsidiaries, not otherwise described in this subsection 8.7, in Borrowers or in Subsidiary Guarantors (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor) that otherwise are not prohibited under the terms of this Agreement;
(d) any Restricted Subsidiary of New Holdings may make Investments in New Holdings (by way of capital contribution or otherwise);
(e) New Holdings 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) New Holdings 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 New Holdings or any such Restricted Subsidiary not to exceed $10,000,000 in the aggregate at any one time;
(g) New Holdings or any of its Restricted Subsidiaries may make payroll advances trade credit in the ordinary course of business;
(hb) New Holdings investments in Cash Equivalents;
(c) Guarantee Obligations permitted by Section 7.2;
(d) loans and advances to the Borrower or a Wholly Owned Subsidiary Guarantor;
(e) the Acquisition;
(f) loans to account debtors of the Borrower or any of its Restricted Subsidiaries may acquire (other than normal and hold receivables owing customary extensions of trade credit), so long as (1) the aggregate amount of such loans by the Borrower and its Subsidiaries does not exceed $1,500,000 in the aggregate at any time, and (2) the Borrower promptly causes the promissory notes or other instruments evidencing such loans to itbe properly endorsed and delivered to the Administrative Agent in accordance with the provisions of the applicable Security Agreements;
(g) investments the Borrower or any of its Subsidiaries in the Borrower or any Person that, if prior to such investment, is a Wholly Owned Subsidiary Guarantor;
(h) the existing investment by the Borrower in ATEMCO as of the Closing Date, together with any additional investment by the Borrower in ATEMCO required pursuant to the ATEMCO Joint Venture Agreement not to exceed the Borrower's pro-rata share of capital contributions based on its ownership interest in ATEMCO as of the Closing Date and in any event not to exceed $100,000 in any fiscal year of the Borrower (provided that all other holders of ownership interests in ATEMCO are also simultaneously making investments in ATEMCO pursuant to the ATEMCO Joint Venture Agreement in accordance with their pro-rata share of required capital contributions based on their respective ownership interests in ATEMCO);
(i) investments in the Capital Stock of any Subsidiary created or acquired in after the ordinary course of business and payable or dischargeable Closing Date in accordance with customary trade terms the other provisions of this Agreement, including without limitation, the provisions of Section 7.4(c), or with the prior written consent of the Administrative Agent;
(provided that nothing j) in addition to investments otherwise expressly permitted by this clause shall prevent New Holdings Section 7.8, investments (including joint-ventures) by the Borrower or any Restricted Subsidiary from offering such concessionary trade termsof its Subsidiaries in an aggregate amount (valued at cost) not exceed $2,000,000 during the term of this Agreement;
(k) loans and advances to officers, or from receiving such investments directors and employees of the Borrower or any of its Subsidiaries for purchases of the Capital Stock of Holdings, not to exceed $750,000 in the aggregate; and
(l) loans and advances to officers, directors and employees of the Borrower or any of its Subsidiaries for travel, entertainment, moving and other investments relocation expenses, in connection with the bankruptcy or reorganization of their respective suppliers or customers or the settlement of disputes with such customers or suppliers arising each case made in the ordinary course of business, as management deems reasonable in the circumstances);
(i) New Holdings and its Restricted Subsidiaries may make Investments in connection with asset sales permitted by subsection 8.6(e), (f) or (g) (to the extent permitted under such subsections and subsection 4.6(b));
(j) existing Investments described in Schedule 8.7;
(k) New Holdings 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) [reserved], (iii) all actions required to be taken with respect to any acquired assets or acquired or newly formed Restricted Subsidiary under subsection 7.10 shall be taken substantially simultaneously with consummation of such acquisition (or such longer period of time as provided under subsection 7.10 or as the Administrative Agent shall agree), (iv) any such newly acquired Restricted Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by subsection 8.2 and (v) with respect to any such acquisition that involves aggregate consideration in excess of $20,000,000, the Borrower Agent has delivered to the Administrative Agent a certificate of a Responsible Officer to the effect set forth in clauses (i) through (iv) 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 New Holdings) given by New Holdings and its Restricted Subsidiaries for all acquisitions of assets by non-Loan Parties or Persons that do not become a Guarantor consummated after the Effective Date in reliance on this clause (k) shall not exceed $75,000,000;
(i) Investments by New Holdings 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) New Holdings and its Restricted Subsidiaries may make loans or advances to, or acquisitions or other Investments in, Unrestricted Subsidiaries or other Persons (exclusive of Persons that are, or become, Foreign Subsidiaries or FSHCOs) that constitute or are in connection with joint ventures, provided (i) the amount of such loans, advances, acquisitions and Investments, when taken together with any guarantees incurred pursuant to subsection 8.4(g), shall not exceed in the aggregate the greater of (A) $75,000,000 and (B) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries and (ii) any such joint venture formed or acquired after the Effective Date shall comply with subsection 7.10(d);
(n) New Holdings 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 or FSHCOs; provided the amount of such Investments shall not exceed in the aggregate $50,000,000 at any time outstanding;
(o) New Holdings or any of its Restricted Subsidiaries may acquire obligations of one or more directors, officers, employees, members or management or consultants of any of New Holdings or its Restricted Subsidiaries in connection with such person’s acquisition of shares of the Parent, so long as no cash is actually advanced by New Holdings or any of its Restricted Subsidiaries to such persons in connection with the acquisition of any such obligations;
(p) New Holdings 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) New Holdings and its Restricted Subsidiaries may acquire assets under a Permitted Asset Swap;
(r) New Holdings and its Restricted Subsidiaries may make other Investments in an aggregate amount not to exceed the Available Amount at such time;
(s) [Reserved];
(t) New Holdings 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 the Parent or (ii) the Net Proceeds of any substantially concurrent issuance of Capital Stock, which is not Disqualified Stock, by Parent (other than any issuance 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), 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)(iii)); provided that (x) immediately before and after making such Investment, no Default or Event of Default shall have occurred and be continuing, (y) in the case of clause (ii) in respect of an issuance by Parent, the proceeds thereof have been contributed by Parent in cash as common equity to New Holdings or such Restricted Subsidiary and (z) in the case of clause (ii), such issuance is to a Person other than a Group Member;
(u) New Holdings and its Restricted Subsidiaries may make other Investments not to exceed at any time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), together with all other Investments made in reliance on this clause (u), the greater of (i) $75,000,000 and (ii) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries; and
(i) New Holdings and its Restricted Subsidiaries may (x) make Investments in a Receivables Subsidiary in connection with a Receivables Facility; provided that any such Investment in a Receivables Subsidiary is in the form of a contribution of additional accounts receivable or as customary Investments in a Receivables Subsidiary in connection with a Receivables Facility and (y) make other customary Investments in connection with a Receivables Facility and (ii) a Receivables Subsidiary may purchase accounts receivable pursuant to a Securitization Repurchase Obligation in connection with a Receivables Facility. 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 cash from such Investment (from dispositions or otherwise) (which amount referred to in this clause (y) shall not exceed the amount of such Investment at the time such Investment was made). The amount of any consideration paid for any Investment consisting of the provision of services or the transfer of non-cash assets shall be equal to the fair market value of such services or non-cash assets, as the case may be, as determined by New Holdings in good faith.
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 or maintain any other investment in, any Person (all of the foregoing, “Investments”), except:
(a) (i) loans or advances by New Holdings or any of its Restricted Subsidiaries in respect of intercompany accounts attributable to the operation of the Borrowers’ cash management system and system, (ii) loans or advances by New Holdings or any of its Restricted Subsidiaries to a Borrower or Subsidiary Guarantor (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor)) and (iii) the transfer by New Holdings or any of its Subsidiaries of any FCC License to a Broadcast License Subsidiary;
(b) Investments by New Holdings and its Restricted Subsidiaries in Restricted Subsidiaries of New Holdings that are not Borrowers or Subsidiary GuarantorsLoan Parties; provided that at all times the aggregate amount of all such Investments at any time outstanding, together with any guarantees by New Holdings made in non-Loan Parties or in assets that do not become Collateral under this subsection 8.7(b) and its Restricted Subsidiaries of Indebtedness of a Restricted Subsidiary that is not a Borrower or Subsidiary Guarantor, subsections 8.7(k) and 8.7(u) shall not exceed $50,000,00010,000,000; provided further, that this subsection 8.7(b) may not be used for any Investment in connection with a liability management or similar transaction;
(c) Investments by New Holdings and the Restricted Subsidiaries, not otherwise described in this subsection 8.7, in Borrowers or in Subsidiary Guarantors (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor) that otherwise are not prohibited under the terms of this Agreement;
(d) any Restricted Subsidiary of New Holdings may make Investments in New Holdings (by way of capital contribution or otherwise);
(e) New Holdings 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) New Holdings 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 New Holdings or any such Restricted Subsidiary not to exceed $10,000,000 5,000,000 in the aggregate at any one timeaggregate;
(g) New Holdings or any of its Restricted Subsidiaries may make payroll advances in the ordinary course of business;
(h) New Holdings or any of its Restricted Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (provided that nothing in this clause shall prevent New Holdings 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);
(i) New Holdings and its Restricted Subsidiaries may make Investments in connection with asset sales permitted by subsection 8.6(e), (f) or (g) (to the extent permitted under such subsections and subsection 4.6(b));
(j) existing Investments described in Schedule 8.7;
(k) New Holdings 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) [reserved], (iii) all actions required to be taken with respect to any acquired assets or acquired or newly formed Restricted Subsidiary under subsection 7.10 shall be taken substantially simultaneously with consummation of such acquisition (or such longer period of time as provided under subsection 7.10 or as the Administrative Agent shall agree), (iv) any such newly acquired Restricted Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by subsection 8.2 and (v) with respect to any such acquisition that involves aggregate consideration in excess of $20,000,000, the Borrower Agent has delivered to the Administrative Agent a certificate of a Responsible Officer to the effect set forth in clauses (i) through (iv) 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 amount of Investments made in good faith by the board of directors of New Holdings) given by New Holdings and its Restricted Subsidiaries for all acquisitions of assets by non-Loan Parties or Persons that do not become a Guarantor consummated after the Effective Date Loan Parties or in reliance on assets that do not become Collateral under this clause (ksubsection 8.7(k) and subsections 8.7(b) and 8.7(u) shall not exceed $75,000,00010,000,000;
(i) Investments by New Holdings 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) New Holdings and its Restricted Subsidiaries may make loans or advances to, or acquisitions or other Investments in, Unrestricted Subsidiaries or other in Persons (exclusive of Persons that are, or become, Foreign Subsidiaries or FSHCOs) that constitute or are in connection with joint ventures, ; provided that (i) the amount of such loans, advances, acquisitions and Investments, when taken together with any guarantees incurred pursuant to subsection 8.4(g), shall not exceed in the aggregate the greater of (A) $75,000,000 and (B) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries 25,000,000 and (ii) any such joint venture formed or acquired after the Effective Date shall comply with subsection 7.10(d); provided further, that all Investments made under this subsection 8.7(m) must (x) be in a joint venture established for a bona fide business purpose with a non-Affiliate of any Loan Party, (y) not be liability management or similar transactions or that are entered into, in whole or in part, for the purpose of evading the collateral and guarantee requirements under this Agreement and the other Loan Documents and (z) be in a joint venture whereby the Capital Stock of such joint venture owned by New Holdings or any of its Subsidiaries is Collateral pledged to the Administrative Agent for the benefit of the Secured Parties;
(n) New Holdings 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 or FSHCOs; provided the amount of such Investments shall not exceed in the aggregate $50,000,000 at any time outstanding[Reserved];
(o) New Holdings or any of its Restricted Subsidiaries may acquire obligations of one or more directors, officers, employees, members or management or consultants of any of New Holdings or its Restricted Subsidiaries in connection with such person’s acquisition of shares of the Parent, so long as no cash is actually advanced by New Holdings or any of its Restricted Subsidiaries to such persons in connection with the acquisition of any such obligations;
(p) New Holdings and its Restricted Subsidiaries may acquire assets with the Net Proceeds from Asset Sales in accordance with the reinvestment rights Reinvestment Rights provided under subsection 4.6(b);
(q) New Holdings and its Restricted Subsidiaries may acquire assets under a Permitted Asset Swap;
(r) New Holdings and its Restricted Subsidiaries may make other Investments in an aggregate amount not to exceed the Available Amount at such time[Reserved];
(s) [Reserved];
(t) New Holdings 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 the Parent or (ii) the Net Proceeds of any substantially concurrent issuance of Capital Stock, which is not Disqualified Stock, by Parent (other than any issuance 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), 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)(iii))[Reserved]; provided that (x) immediately before and after making such Investment, no Default or Event of Default shall have occurred and be continuing, (y) in the case of clause (ii) in respect of an issuance by Parent, the proceeds thereof have been contributed by Parent in cash as common equity to New Holdings or such Restricted Subsidiary and (z) in the case of clause (ii), such issuance is to a Person other than a Group Member;and
(u) New Holdings and its Restricted Subsidiaries may make other Investments not to exceed at any time outstanding (without giving effect to $13,500,000; provided that the sale aggregate amount of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), together with all other Investments made in reliance on Persons that are not (or do not become) Loan Parties or in assets that do not become Collateral under this clause (u)subsection 8.7(u) and subsections 8.7(b) and 8.7(k) shall not exceed $10,000,000; provided further, the greater of (ithat this subsection 8.7(u) $75,000,000 and (ii) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries; and
(i) New Holdings and its Restricted Subsidiaries may (x) make Investments in a Receivables Subsidiary not be used for any Investment in connection with a Receivables Facilityliability management or similar transaction. Notwithstanding anything to the contrary contained in this Agreement, in no event shall any Borrower or any other Loan Party sell, transfer or otherwise dispose of any Material Intellectual Property or any other assets owned by any Borrower or any other Loan Party that is material to the business operations, assets, financial condition or prospects of the Borrowers and the other Loan Parties (in each case, whether pursuant to a sale, lease, license, transfer, Investment, Restricted Payment, dividend or otherwise or relating to the exclusive rights thereto) to any Subsidiary that is not a Loan Party; provided that any such Investment in a Receivables Subsidiary is in no event shall this sentence prohibit the form Borrower or its Subsidiaries from (i) selling, transferring or otherwise disposing of a contribution of additional accounts receivable cash or as customary Investments in a Receivables Subsidiary in connection with a Receivables Facility and (y) make other customary Investments in connection with a Receivables Facility and Cash Equivalents to the extent not otherwise prohibited by this Agreement, (ii) a Receivables Subsidiary may purchase accounts receivable pursuant entering into non-exclusive licensing arrangements or (iii) transferring any FCC License to a Securitization Repurchase Obligation in connection with a Receivables FacilityBroadcast License Subsidiary. 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 cash from such Investment (from dispositions or otherwise) (which amount referred to in this clause (y) shall not exceed the amount of such Investment at the time such Investment was made). The amount of any consideration paid for any Investment consisting of the provision of services or the transfer of non-cash assets shall be equal to the fair market value of such services or non-cash assets, as the case may be, as determined by New Holdings in good faith.
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 or maintain any other investment in, any Person (all of the foregoing, “Investments”), except:
(a) (i) loans or advances by New Holdings or any of its Restricted Subsidiaries in respect of intercompany accounts attributable to the operation of the Borrowers’ cash management system and (ii) loans or advances by New Holdings or any of its Restricted Subsidiaries to a Borrower or Subsidiary Guarantor (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor);
(b) Investments by New Holdings and its Restricted Subsidiaries the Group Members in Restricted Subsidiaries of New Holdings that are not Borrowers or Subsidiary Guarantors; provided that at all times the aggregate amount of all such Investments at any time outstanding, together with any guarantees by New Holdings and its Restricted Subsidiaries the Group Members of Indebtedness of a Restricted Subsidiary that is not a Borrower or Subsidiary Guarantor, shall not exceed $50,000,000;
(c) Investments by New Holdings and the Restricted Subsidiaries, not otherwise described in this subsection Section 8.7, in Borrowers or in Subsidiary Guarantors (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor) that otherwise are not prohibited under the terms of this Agreement;
(d) any Restricted Subsidiary of New Holdings may make Investments in New Holdings (by way of capital contribution or otherwise);
(e) New Holdings and its Restricted Subsidiaries the Group Members 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) New Holdings 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 New Holdings or any such Restricted Subsidiary not to exceed $10,000,000 in the aggregate at any one time;
(g) New Holdings or any of its Restricted Subsidiaries may make payroll advances in the ordinary course of business;
(h) New Holdings or any of its Restricted Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (provided that nothing in this clause shall prevent New Holdings 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);
(i) New Holdings and its Restricted Subsidiaries the Group Members may make Investments in connection with asset sales permitted by subsection Section 8.6(e), (f) or (g) (to the extent permitted under such subsections sections and subsection Section 4.6(b));
(j) existing Investments described in Schedule 8.7;
(k) New Holdings and its Restricted Subsidiaries the Group Members 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) [reserved], (iii) all actions required to be taken with respect to any acquired assets or acquired or newly formed Restricted Subsidiary under subsection Section 7.10 shall be taken substantially simultaneously with consummation of such acquisition (or such longer period of time as provided under subsection Section 7.10 or as the Administrative Agent shall agree), (iv) any such newly acquired Restricted Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by subsection 8.2 Section 8.2, (v) if such acquisition includes the acquisition of Accounts by an existing or newly formed Restricted Subsidiary, all of such Accounts shall be excluded from the Borrowing Base until such time as the Administrative Agent has completed a customary due diligence investigation as to such Accounts and such Person, which investigation may, at the sole discretion of the Administrative Agent, include a field examination, and the Administrative Agent is reasonably satisfied with the results thereof) and (vvi) with respect to any such acquisition that involves aggregate consideration in excess of $20,000,000, the Borrower Agent has delivered to the Administrative Agent a certificate of a Responsible Officer to the effect set forth in clauses (i) through (iv) 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 New Holdings) given by New Holdings and its Restricted Subsidiaries the Group Members for all acquisitions of assets by non-Loan Parties or Persons that do not become a Guarantor consummated after the Effective Date in reliance on this clause (k) shall not exceed $75,000,000;
(i) Investments by New Holdings 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 Section 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) New Holdings and its Restricted Subsidiaries the Group Members may make loans or advances to, or acquisitions or other Investments in, Unrestricted Subsidiaries or other Persons (exclusive of Persons that are, or become, Foreign Subsidiaries or FSHCOs) that constitute or are in connection with joint ventures, provided (i) the amount of such loans, advances, acquisitions and Investments, when taken together with any guarantees incurred pursuant to subsection Section 8.4(g), shall not exceed in the aggregate the greater of (A) $75,000,000 and (B) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries the Group Members and (ii) any such joint venture formed or acquired after the Effective Date shall comply with subsection Section 7.10(d);
(n) New Holdings and its Restricted Subsidiaries the Group Members 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 or FSHCOs; provided the amount of such Investments shall not exceed in the aggregate $50,000,000 at any time outstanding;
(o) New Holdings or any of its Restricted Subsidiaries may acquire obligations of one or more directors, officers, employees, members or management or consultants of any of New Holdings or its Restricted Subsidiaries in connection with such person’s acquisition of shares of the Parent, so long as no cash is actually advanced by New Holdings or any of its Restricted Subsidiaries to such persons in connection with the acquisition of any such obligations;
(p) New Holdings and its Restricted Subsidiaries the Group Members may acquire assets with the Net Proceeds from Asset Sales in accordance with the reinvestment rights provided under subsection 4.6(b)Sales;
(q) New Holdings and its Restricted Subsidiaries the Group Members may acquire assets under a Permitted Asset Swap;
(r) New Holdings and its Restricted Subsidiaries the Group Members may make other Investments in an aggregate amount not so long as at the time of, and immediately after giving effect to exceed such Investments, the Available Amount at such timePayment Conditions have been met;
(s) [Reservedreserved];
(t) New Holdings and its Restricted Subsidiaries the Group Members may make Investments to the extent the consideration paid therefor consists solely of (i) Capital Stock, which is not Disqualified Stock, of the Parent or (ii) the Net Proceeds of any substantially concurrent issuance of Capital Stock, which is not Disqualified Stock, by Parent (other than any issuance 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), have been applied for Restricted Payments under subsection Section 8.8(c) or subsection Section 8.8(h) or have been applied for prepayments of Indebtedness under subsection Section 8.15(b)(iii)); provided that (x) immediately before and after making such Investment, no Default or Event of Default shall have occurred and be continuing, (y) in the case of clause (ii) in respect of an issuance by Parent, the proceeds thereof have been contributed by Parent in cash as common equity to New Holdings or such Restricted Subsidiary and (z) in the case of clause (ii), such issuance is to a Person other than a Group Member;
(u) New Holdings and its Restricted Subsidiaries the Group Members may make other Investments not to exceed at any time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), together with all other Investments made in reliance on this clause (u), the greater of (i) $75,000,000 and (ii) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries; and
(i) New Holdings and its Restricted Subsidiaries may (x) make Investments in a Receivables Subsidiary in connection with a Receivables Facility; provided that any such Investment in a Receivables Subsidiary is in the form of a contribution of additional accounts receivable or as customary Investments in a Receivables Subsidiary in connection with a Receivables Facility and (y) make other customary Investments in connection with a Receivables Facility and (ii) a Receivables Subsidiary may purchase accounts receivable pursuant to a Securitization Repurchase Obligation in connection with a Receivables FacilityGroup Members. 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 cash from such Investment (from dispositions or otherwise) (which amount referred to in this clause (y) shall not exceed the amount of such Investment at the time such Investment was made). The amount of any consideration paid for any Investment consisting of the provision of services or the transfer of non-cash assets shall be equal to the fair market value of such services or non-cash assets, as the case may be, as determined by New Holdings in good faith.
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 or maintain any other investment in, any Person (all of the foregoing, “Investments”), except:
(a) (i) loans or advances by New Holdings or any of its Restricted Subsidiaries in respect of intercompany accounts attributable to the operation of the Borrowers’ cash management system and (ii) loans or advances by New Holdings or any of its Restricted Subsidiaries to a Borrower or Subsidiary Guarantor (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor);
(b) Investments by New Holdings and its Restricted Subsidiaries in Restricted Subsidiaries of New Holdings that are not Borrowers or Subsidiary Guarantors; provided that at all times the aggregate amount of all such Investments at any time outstanding, together with any guarantees by New Holdings and its Restricted Subsidiaries of Indebtedness of a Restricted Subsidiary that is not a Borrower or Subsidiary Guarantor, shall not exceed $50,000,00010,000,000;
(c) Investments by New Holdings and the Restricted Subsidiaries, not otherwise described in this subsection 8.7, in Borrowers or in Subsidiary Guarantors (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor) that otherwise are not prohibited under the terms of this Agreement;
(d) any Restricted Subsidiary of New Holdings may make Investments in New Holdings (by way of capital contribution or otherwise);
(e) New Holdings 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) New Holdings 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 New Holdings or any such Restricted Subsidiary not to exceed $10,000,000 in the aggregate at any one time;
(g) New Holdings or any of its Restricted Subsidiaries may make payroll advances in the ordinary course of business;
(h) New Holdings or any of its Restricted Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (provided that nothing in this clause shall prevent New Holdings 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);
(i) New Holdings and its Restricted Subsidiaries may make Investments in connection with asset sales permitted by subsection 8.6(e), (f) or (g) (to the extent permitted under such subsections and subsection Section 4.6(b))) or to which the Required Lenders consent;
(j) existing Investments described in Schedule 8.7;
(k) New Holdings 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) [reserved]as of the date of such acquisition, the Consolidated First Lien 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)) is less than or equal to the greater of (A) the Consolidated First Lien Net Leverage Ratio as of the last day of the most recently ended fiscal quarter and (B) 5.00 to 1.00, (iii) all actions required to be taken with respect to any acquired assets or acquired or newly formed Restricted Subsidiary under subsection 7.10 shall be taken substantially simultaneously with consummation of such acquisition (or such longer period of time as provided under subsection Section 7.10 or as the Administrative Agent shall agree), (iv) any such newly acquired Restricted Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by subsection 8.2 and (v) with respect to any such acquisition that involves aggregate consideration in excess of $20,000,000, the Borrower Agent has delivered to the Administrative Agent a certificate of a Responsible Officer to the effect set forth in clauses (i) through (iv) 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 New Holdings) given by New Holdings and its Restricted Subsidiaries for all acquisitions of assets by non-Loan Parties or Persons that do not become a Guarantor consummated after the Effective Date in reliance on this clause (k) shall not exceed $75,000,000;
(i) Investments by New Holdings 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) New Holdings and its Restricted Subsidiaries may make loans or advances to, or acquisitions or other Investments in, Unrestricted Subsidiaries or other Persons (exclusive of Persons that which are, or become, Foreign Subsidiaries or FSHCOsSubsidiaries) that constitute or are in connection with joint ventures, provided (i) the amount of such loans, advances, acquisitions and Investments, when taken together with any guarantees incurred pursuant to subsection 8.4(g), Investments shall not exceed in the aggregate the greater of (A) $75,000,000 30,000,000 at any time outstanding for Investments made with cash or Cash Equivalents and (B) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries $20,000,000 at any time outstanding for other Investments and (ii) any such joint venture formed or acquired after the Effective Date shall comply with subsection Section 7.10(d);
(n) New Holdings 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 or FSHCOsSubsidiaries; provided the amount of such Investments shall not exceed in the aggregate $50,000,000 5,000,000 at any time outstanding;
(o) New Holdings or any of its Restricted Subsidiaries may acquire obligations of one or more directors, officers, employees, members or management or consultants of any of New Holdings or its Restricted Subsidiaries in connection with such person’s acquisition of shares of the Parent, so long as no cash is actually advanced by New Holdings or any of its Restricted Subsidiaries to such persons in connection with the acquisition of any such obligations;
(p) New Holdings and its Restricted Subsidiaries may acquire assets constituting a Permitted Reinvestment with the Net Proceeds from Asset Sales in accordance with the reinvestment rights provided under subsection 4.6(b);
(q) New Holdings and its Restricted Subsidiaries may acquire assets under a Permitted Asset Swap;
(r) New Holdings and its Restricted Subsidiaries may make other Investments in an aggregate amount not to exceed the Available Amount at such time;
(s) [Reserved]New Holdings and its Subsidiaries may consummate the transactions contemplated by the Merlin Asset Purchase Agreement;
(t) New Holdings 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 the Parent or (ii) the Net Proceeds of any substantially concurrent issuance of Capital Stock, which is not Disqualified Stock, by Parent (other than any issuance 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), 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)(iii)); provided that that, (x) immediately before and after making such Investment, no Default or Event of Default shall have occurred and be continuing, (y) in the case of clause (ii) in respect of an issuance by Parent, the proceeds thereof have been contributed by Parent in cash as common equity to New Holdings or such Restricted Subsidiary and (z) in the case of clause (ii), such issuance is to a Person other than a Group Member;
(u) New Holdings and its Restricted Subsidiaries may make other Investments not to exceed at any time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities)outstanding, together with all other Investments made in reliance on this clause (u), the greater of (i) $75,000,000 and (ii) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries; and50,000,000;
(i) New Holdings and its Restricted Subsidiaries may (x) make Investments in a Receivables Subsidiary in connection with a Receivables Facility; provided that any such Investment in a Receivables Subsidiary is in the form of a contribution of additional accounts receivable or as customary Investments in a Receivables Subsidiary in connection with a Receivables Facility and (y) make other customary Investments in connection with a Receivables Facility and (ii) a Receivables Subsidiary may purchase accounts receivable pursuant to a Securitization Repurchase Obligation in connection with a Receivables Facility; and
(w) New Holdings and its Subsidiaries may make the Investments contemplated by the Restructuring Transactions. 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 cash from such Investment (from dispositions or otherwise) (which amount referred to in this clause (y) shall not exceed the amount of such Investment at the time such Investment was made). The amount of any consideration paid for any Investment consisting of the provision of services or the transfer of non-cash assets shall be equal to the fair market value of such services or non-cash assets, as the case may be, as determined by New Holdings in good faith.
Appears in 1 contract
Samples: 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, or make or maintain any other investment in, any Person (all of the foregoing, “Investments”), except:
(a) (i) loans or advances by New Holdings the Borrower or any of its Restricted Subsidiaries in respect of intercompany accounts attributable to the operation of the Borrowers’ Borrower’s cash management system and (ii) loans or advances by New Holdings the Borrower or any of its Restricted Subsidiaries to a Borrower or Subsidiary Guarantor (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor);
(b) Investments by New Holdings the Borrower and its Restricted Subsidiaries in Restricted Subsidiaries of New Holdings the Borrower that are not Borrowers or Subsidiary Guarantors; provided that at all times the aggregate amount of all such Investments at any time outstanding, together with any guarantees by New Holdings the Borrower and its Restricted Subsidiaries of Indebtedness of a Restricted Subsidiary that is not a Borrower or Subsidiary Guarantor, shall not exceed $50,000,00025,000,000;
(c) Investments by New Holdings the Borrower and the Restricted Subsidiaries, not otherwise described in this subsection 8.7, in Borrowers the Borrower or in Subsidiary Guarantors (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor) that otherwise are not prohibited under the terms of this Agreement;
(d) any Restricted Subsidiary of New Holdings the Borrower may make Investments in New Holdings the Borrower (by way of capital contribution or otherwise);
(e) New Holdings 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) New Holdings 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 New Holdings the Borrower or any such Restricted Subsidiary not to exceed $10,000,000 in the aggregate at any one time;
(g) New Holdings the Borrower or any of its Restricted Subsidiaries may make payroll advances in the ordinary course of business;
(h) New Holdings the Borrower or any of its Restricted Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (provided that nothing in this clause shall prevent New Holdings 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);
(i) New Holdings 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 extent permitted under such subsections and subsection 4.6(b))Required Lenders consent;
(j) existing Investments of the Borrower described in Schedule 8.7;
(k) New Holdings 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) [reserved]as of the date of such acquisition, the Consolidated First Lien 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 First Lien Net Leverage Ratio as of the last day of the most recently ended fiscal quarter and (B) 5.00 to 1.00, (iii) all actions required to be taken with respect to any acquired assets or acquired or newly formed Restricted Subsidiary under subsection 7.10 shall be taken substantially simultaneously with consummation of such acquisition (or such longer period of time as provided under subsection 7.10 or as the Administrative Agent shall agreeagree in its sole discretion), (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 Restricted Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by subsection 8.2 and (vvi) with respect to any such acquisition that involves aggregate consideration in excess of $20,000,000, the Borrower Agent has delivered to the Administrative Agent a certificate of a Responsible Officer to the effect set forth in clauses (i) through (ivv) 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 New Holdingsthe Borrower) given by New Holdings the Borrower and its Restricted Subsidiaries for all acquisitions of assets by non-Loan Parties or Persons that do not become a Guarantor consummated after the Restatement Effective Date in reliance on this clause (k) of Persons that do not, upon the acquisition thereof, become Subsidiary Guarantors shall not exceed the greater of (x) $75,000,00035,000,000 and (y) 1% of Consolidated Total Assets;
(i) Investments by New Holdings 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) New Holdings the Borrower and its Restricted Subsidiaries may make loans or advances to, or acquisitions or other Investments in, Unrestricted Subsidiaries or other Persons (exclusive of (i) Unrestricted Subsidiaries and (ii) Persons that which are, or become, Foreign Subsidiaries or FSHCOsSubsidiaries) that constitute or are in connection with joint ventures, provided (i) the amount of such loans, advances, acquisitions and Investments, when taken together with any guarantees incurred pursuant to subsection 8.4(g), Investments shall not exceed in the aggregate the greater of (A) $75,000,000 30,000,000 at any time outstanding for Investments made with cash or Cash Equivalents and (B) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries and (ii) $20,000,000 at any such joint venture formed or acquired after the Effective Date shall comply with subsection 7.10(d)time outstanding for other Investments;
(n) New Holdings 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 or FSHCOsthat are Restricted Subsidiaries (including new Foreign Subsidiaries that are to become Restricted Subsidiaries); provided the amount of such Investments shall not exceed in the aggregate $50,000,000 5,000,000 at any time outstanding;
(o) New Holdings 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 New Holdings the Borrower or its Restricted Subsidiaries in connection with such person’s acquisition of shares of the ParentBorrower, so long as no cash is actually advanced by New Holdings the Borrower or any of its Restricted Subsidiaries to such persons in connection with the acquisition of any such obligations;
(p) New Holdings 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) New Holdings the Borrower and its Restricted Subsidiaries may acquire assets under a Permitted Asset Swap;
(r) New Holdings the Borrower and its Restricted Subsidiaries may make other Investments in an aggregate amount not to exceed the Available Amount at such time;
(s) [Reserved];
(t) New Holdings 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 the Parent 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 issuance 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) or a Restricted Payment pursuant to subsection 8.8(b), 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)(iii8.15(b)(iv)); provided that that, (x) immediately before and after making such Investment, no Default or Event of Default shall have occurred and be continuing), (y) in the case of clause (ii) in respect of an issuance by Parent, the proceeds thereof have been contributed by Parent in cash as common equity to New Holdings the Borrower or such Restricted Subsidiary and (z) in the case of clause (ii), such issuance is to a Person other than a Group Member;; and
(u) New Holdings the Borrower and its Restricted Subsidiaries may make other Investments not to exceed at any time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities)outstanding, together with all other Investments made in reliance on this clause (u), the greater of (i) $75,000,000 150,000,000 and (ii) 4the lesser of (x) 33% of consolidated total assets of the Consolidated Total Assets of New Holdings Borrower and its Restricted SubsidiariesSubsidiaries 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; and
(i) New Holdings the Borrower and its Restricted Subsidiaries may (x) make Investments in a Receivables Subsidiary in connection with a Receivables Facility; provided that any such Investment in a Receivables Subsidiary is in the form of a contribution of additional accounts receivable or as customary Investments in a Receivables Subsidiary in connection with a Receivables Facility and (y) make other customary Investments in connection with a Receivables Facility and (ii) a Receivables Subsidiary may purchase accounts receivable pursuant to a Securitization Repurchase Obligation in connection with a Receivables Facility. 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 cash from such Investment (from dispositions or otherwise) (which amount referred to in this clause (y) shall not exceed the amount of such Investment at the time such Investment was made). The amount of any consideration paid for any Investment consisting of the provision of services or the transfer of non-cash assets shall be equal to the fair market value of such services or non-cash assets, as the case may be, as determined by New Holdings the Borrower in good faith.
Appears in 1 contract
Samples: Credit Agreement (Cumulus Media Inc)
Limitation on Investments, Loans and Advances. Make Except to the extent of assets in the Reserve Accounts, 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 Investment in, any Person (all of the foregoing, “Investments”)Person, except:
(a) (i) loans or advances by New Holdings or any extensions of its Restricted Subsidiaries in respect of intercompany accounts attributable to the operation of the Borrowers’ cash management system and (ii) loans or advances by New Holdings or any of its Restricted Subsidiaries to a Borrower or Subsidiary Guarantor (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor);
(b) Investments by New Holdings and its Restricted Subsidiaries in Restricted Subsidiaries of New Holdings that are not Borrowers or Subsidiary Guarantors; provided that at all times the aggregate amount of all such Investments at any time outstanding, together with any guarantees by New Holdings and its Restricted Subsidiaries of Indebtedness of a Restricted Subsidiary that is not a Borrower or Subsidiary Guarantor, shall not exceed $50,000,000;
(c) Investments by New Holdings and the Restricted Subsidiaries, not otherwise described in this subsection 8.7, in Borrowers or in Subsidiary Guarantors (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor) that otherwise are not prohibited under the terms of this Agreement;
(d) any Restricted Subsidiary of New Holdings may make Investments in New Holdings (by way of capital contribution or otherwise);
(e) New Holdings 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) New Holdings 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 New Holdings or any such Restricted Subsidiary not to exceed $10,000,000 in the aggregate at any one time;
(g) New Holdings or any of its Restricted Subsidiaries may make payroll advances trade credit in the ordinary course of business;
(hb) New Holdings investments in Cash Equivalents;
(c) (i) loans and advances to employees of Company or any of its Restricted Subsidiaries may acquire for travel, entertainment and hold receivables owing to itrelocation expenses and for advances on salary prior to, if created or acquired and otherwise payable during, an employee's vacation, in the ordinary course of business in an aggregate amount for Company and payable its Subsidiaries not to exceed $500,000 at any one time outstanding and (ii) the loans to J. Xxxxx Xxxxxxxxxx, the President and Chief Executive Officer of the Company, evidenced by the obligations described on Schedule 7.9(c);
(d) investments by Company in any Subsidiary (other than Venture Subsidiaries, SPUD Subsidiaries, MPUD Subsidiary Group members and Unrestricted Subsidiaries) or dischargeable by any Subsidiary in accordance with customary trade terms (provided that nothing in this clause shall prevent New Holdings or any Restricted Subsidiary from offering such concessionary trade terms, or from receiving such investments Company or any other investments Subsidiary (other than Venture Subsidiaries, SPUD Subsidiaries, MPUD Subsidiary Group members and Unrestricted Subsidiaries) in connection with the bankruptcy or reorganization of their respective suppliers or customers or the settlement of disputes with such customers or suppliers arising cash management procedures in the ordinary course of business, as management deems reasonable in the circumstances);
(e) (i) New Holdings loans by Company to its Subsidiaries (other than Venture Subsidiaries, SPUD Subsidiaries, MPUD Subsidiary Group members and Unrestricted Subsidiaries) or by any Subsidiary to Company to the extent such Indebtedness is permitted pursuant to Section 7.2(f); and (ii) capital contributions to Subsidiaries (other than Venture Subsidiaries, SPUD Subsidiaries, MPUD Subsidiary Group members and Unrestricted Subsidiaries) so long as Company or its Restricted Subsidiaries Subsidiary making the capital contribution receives stock equal to the value of the capital contributed as determined in accordance with GAAP; provided, that Collateral Agent's Lien shall continue against such stock received by Company or its Subsidiary as aforesaid, which Lien shall be evidenced by any and all documents and filings as may make Investments be required by Collateral Agent and Agent;
(f) extensions of credit to purchasers in connection with asset sales of assets permitted by subsection 8.6(e), (f) or under this Agreement; and
(g) (capital contributions to Venture Subsidiaries for the purpose of making investments in Joint Ventures, to SPUD Subsidiaries, to MPUD Group members and to Unrestricted Subsidiaries so long as Company or its Subsidiary making the capital contribution receives stock, partnership interests, joint venture interests, or beneficial interests, respectively, equal to the extent permitted under such subsections and subsection 4.6(b));
(j) existing Investments described in Schedule 8.7;
(k) New Holdings 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 value of the outstanding Capital Stock capital contributed as determined in accordance with GAAP (and upon any permitted capital contribution as aforesaid, Collateral Agent shall execute releases of Collateral Agent's Lien upon any corporation or other entity (other than any director’s qualifying shares or any options for equity interests that cannotCollateral contributed); provided, 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, that 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 exists hereunder or would result from the making of such acquisition)therefrom, (ii) [reserved]that Collateral Agent's Lien shall continue against such stock or other interests received by Company or its Subsidiary as aforesaid, which Lien shall be evidenced by any and all documents and filings as may be required by Collateral Agent and Agent, and (iii) all actions required to be taken with respect to any acquired assets or acquired or newly formed Restricted Subsidiary under subsection 7.10 shall be taken substantially simultaneously with consummation of such acquisition (or such longer period of time as provided under subsection 7.10 or as the Administrative Agent shall agree), (iv) any such newly acquired Restricted Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by subsection 8.2 from and (v) with respect to any such acquisition that involves aggregate consideration in excess of $20,000,000, the Borrower Agent has delivered to the Administrative Agent a certificate of a Responsible Officer to the effect set forth in clauses (i) through (iv) 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 New Holdings) given by New Holdings and its Restricted Subsidiaries for all acquisitions of assets by non-Loan Parties or Persons that do not become a Guarantor consummated after the Effective Date in reliance on this clause (k) shall not exceed $75,000,000;
(i) Investments by New Holdings and any Restricted Subsidiaries in any businessDate, 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 aggregate "net amount" of such Investment and (ii) Investments of any Person in existence at the time such Person becomes a Restricted Subsidiary pursuant capital contributions shall be limited to a Business Acquisition (provided that such Investment was not made in connection with or anticipation of such Person becoming a Restricted Subsidiary);
(m) New Holdings and its Restricted Subsidiaries may make loans or advances to, or acquisitions or other Investments in, Unrestricted Subsidiaries or other Persons (exclusive of Persons that are, or become, Foreign Subsidiaries or FSHCOs) that constitute or are in connection with joint ventures, provided (i) the amount of such loans, advances, acquisitions and Investments, when taken together with any guarantees incurred pursuant to subsection 8.4(g), shall not exceed $35,000,000 in the aggregate the greater of (A) for all enterprises and projects, and $75,000,000 and (B) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries and (ii) 15,000,000 for any such joint venture formed single enterprise or acquired after the Effective Date shall comply with subsection 7.10(d);
(n) New Holdings 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 or FSHCOs; provided the amount of such Investments shall not exceed in the aggregate $50,000,000 at any time outstanding;
(o) New Holdings or any of its Restricted Subsidiaries may acquire obligations of one or more directors, officers, employees, members or management or consultants of any of New Holdings or its Restricted Subsidiaries in connection with such person’s acquisition of shares of the Parent, so long as no cash is actually advanced by New Holdings or any of its Restricted Subsidiaries to such persons in connection with the acquisition of any such obligations;
(p) New Holdings 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) New Holdings and its Restricted Subsidiaries may acquire assets under a Permitted Asset Swap;
(r) New Holdings and its Restricted Subsidiaries may make other Investments in an aggregate amount not to exceed the Available Amount at such time;
(s) [Reserved];
(t) New Holdings 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 the Parent or (ii) the Net Proceeds of any substantially concurrent issuance of Capital Stock, which is not Disqualified Stock, by Parent (other than any issuance 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), 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)(iii)); provided that (x) immediately before and after making such Investment, no Default or Event of Default shall have occurred and be continuing, (y) in the case of clause (ii) in respect of an issuance by Parent, the proceeds thereof have been contributed by Parent in cash as common equity to New Holdings or such Restricted Subsidiary and (z) in the case of clause (ii), such issuance is to a Person other than a Group Member;
(u) New Holdings and its Restricted Subsidiaries may make other Investments not to exceed at any time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), together with all other Investments made in reliance on this clause (u), the greater of (i) $75,000,000 and (ii) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries; and
(i) New Holdings and its Restricted Subsidiaries may (x) make Investments in a Receivables Subsidiary in connection with a Receivables Facility; provided that any such Investment in a Receivables Subsidiary is in the form of a contribution of additional accounts receivable or as customary Investments in a Receivables Subsidiary in connection with a Receivables Facility and (y) make other customary Investments in connection with a Receivables Facility and (ii) a Receivables Subsidiary may purchase accounts receivable pursuant to a Securitization Repurchase Obligation in connection with a Receivables Facilityproject. For purposes of calculating this Section 7.9(g), 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 cash from such Investment (from dispositions or otherwise) (which amount referred to in this clause (y) shall not exceed the amount of such Investment at the time such Investment was made). The amount of any consideration paid for any Investment consisting of the provision of services or the transfer of non-cash assets "net amount" shall be equal to the fair market value aggregate amount of such services or non-cash assetsall capital contributions less any dividends paid to the Company and/or Subsidiaries, as the case may be, as determined by New Holdings the Venture Subsidiaries, SPUD Subsidiaries, MPUD Subsidiary Group members and/or Unrestricted Subsidiaries. Notwithstanding anything to the contrary in good faiththis Section 7.9, no Subsidiary which owns any project may invest in any Subsidiary which has no interest in such project.
Appears in 1 contract
Samples: Term Loan Agreement (Atlantic Gulf Communities Corp)
Limitation on Investments, Loans and Advances. Make Except to the extent of assets in the Reserve Accounts, 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 Investment in, any Person (all of the foregoing, “Investments”)Person, except:
(a) (i) loans or advances by New Holdings or any extensions of its Restricted Subsidiaries in respect of intercompany accounts attributable to the operation of the Borrowers’ cash management system and (ii) loans or advances by New Holdings or any of its Restricted Subsidiaries to a Borrower or Subsidiary Guarantor (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor);
(b) Investments by New Holdings and its Restricted Subsidiaries in Restricted Subsidiaries of New Holdings that are not Borrowers or Subsidiary Guarantors; provided that at all times the aggregate amount of all such Investments at any time outstanding, together with any guarantees by New Holdings and its Restricted Subsidiaries of Indebtedness of a Restricted Subsidiary that is not a Borrower or Subsidiary Guarantor, shall not exceed $50,000,000;
(c) Investments by New Holdings and the Restricted Subsidiaries, not otherwise described in this subsection 8.7, in Borrowers or in Subsidiary Guarantors (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor) that otherwise are not prohibited under the terms of this Agreement;
(d) any Restricted Subsidiary of New Holdings may make Investments in New Holdings (by way of capital contribution or otherwise);
(e) New Holdings 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) New Holdings 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 New Holdings or any such Restricted Subsidiary not to exceed $10,000,000 in the aggregate at any one time;
(g) New Holdings or any of its Restricted Subsidiaries may make payroll advances trade credit in the ordinary course of business;
(hb) New Holdings investments in Cash Equivalents;
(c) (i) loans and advances to employees of Company or any of its Restricted Subsidiaries may acquire for travel, entertainment and hold receivables owing to itrelocation expenses and for advances on salary prior to, if created or acquired and otherwise payable during, an employee's vacation, in the ordinary course of business in an aggregate amount for Company and payable its Subsidiaries not to exceed $500,000 at any one time outstanding and (ii) the loans to J. Larry Rutherford, the Presxxxxx xxx Xxxxx Executive Officer of the Company, evidenced by the obligations described on Schedule 7.9(c);
(d) investments by Company in any Subsidiary (other than Venture Subsidiaries, SPUD Subsidiaries, MPUD Subsidiary Group members and Unrestricted Subsidiaries) or dischargeable by any Subsidiary in accordance with customary trade terms (provided that nothing in this clause shall prevent New Holdings or any Restricted Subsidiary from offering such concessionary trade terms, or from receiving such investments Company or any other investments Subsidiary (other than Venture Subsidiaries, SPUD Subsidiaries, MPUD Subsidiary Group members and Unrestricted Subsidiaries) in connection with the bankruptcy or reorganization of their respective suppliers or customers or the settlement of disputes with such customers or suppliers arising cash management procedures in the ordinary course of business, as management deems reasonable in the circumstances);
(e) (i) New Holdings loans by Company to its Subsidiaries (other than Venture Subsidiaries, SPUD Subsidiaries, MPUD Subsidiary Group members and Unrestricted Subsidiaries) or by any Subsidiary to Company to the extent such Indebtedness is permitted pursuant to Section 7.2(f); and (ii) capital contributions to Subsidiaries (other than Venture Subsidiaries, SPUD Subsidiaries, MPUD Subsidiary Group members and Unrestricted Subsidiaries) so long as Company or its Restricted Subsidiaries Subsidiary making the capital contribution receives stock equal to the value of the capital contributed as determined in accordance with GAAP; provided, that Collateral Agent's Lien shall continue against such stock received by Company or its Subsidiary as aforesaid, which Lien shall be evidenced by any and all documents and filings as may make Investments be required by Collateral Agent and Obligee;
(f) extensions of credit to purchasers in connection with asset sales of assets permitted by subsection 8.6(e), (f) or under this Agreement; and
(g) (capital contributions to Venture Subsidiaries for the purpose of making investments in Joint Ventures, to SPUD Subsidiaries, to MPUD Group members and to Unrestricted Subsidiaries so long as Company or its Subsidiary making the capital contribution receives stock, partnership interests, joint venture interests, or beneficial interests, respectively, equal to the extent permitted under such subsections and subsection 4.6(b));
(j) existing Investments described in Schedule 8.7;
(k) New Holdings 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 value of the outstanding Capital Stock capital contributed as determined in accordance with GAAP (and upon any permitted capital contribution as aforesaid, Collateral Agent shall execute releases of Collateral Agent's Lien upon any corporation or other entity (other than any director’s qualifying shares or any options for equity interests that cannotCollateral contributed); provided, 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, that 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 exists hereunder or would result from the making of such acquisition)therefrom, (ii) [reserved]that Collateral Agent's Lien shall continue against such stock or other interests received by Company or its Subsidiary as aforesaid, which Lien shall be evidenced by any and all documents and filings as may be required by Collateral Agent and Obligee, and (iii) all actions required to be taken with respect to any acquired assets or acquired or newly formed Restricted Subsidiary under subsection 7.10 shall be taken substantially simultaneously with consummation of such acquisition (or such longer period of time as provided under subsection 7.10 or as the Administrative Agent shall agree), (iv) any such newly acquired Restricted Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by subsection 8.2 from and (v) with respect to any such acquisition that involves aggregate consideration in excess of $20,000,000, the Borrower Agent has delivered to the Administrative Agent a certificate of a Responsible Officer to the effect set forth in clauses (i) through (iv) 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 New Holdings) given by New Holdings and its Restricted Subsidiaries for all acquisitions of assets by non-Loan Parties or Persons that do not become a Guarantor consummated after the Effective Date in reliance on this clause (k) shall not exceed $75,000,000;
(i) Investments by New Holdings and any Restricted Subsidiaries in any businessDate, 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 aggregate "net amount" of such Investment and (ii) Investments of any Person in existence at the time such Person becomes a Restricted Subsidiary pursuant capital contributions shall be limited to a Business Acquisition (provided that such Investment was not made in connection with or anticipation of such Person becoming a Restricted Subsidiary);
(m) New Holdings and its Restricted Subsidiaries may make loans or advances to, or acquisitions or other Investments in, Unrestricted Subsidiaries or other Persons (exclusive of Persons that are, or become, Foreign Subsidiaries or FSHCOs) that constitute or are in connection with joint ventures, provided (i) the amount of such loans, advances, acquisitions and Investments, when taken together with any guarantees incurred pursuant to subsection 8.4(g), shall not exceed $35,000,000 in the aggregate the greater of (A) for all enterprises and projects, and $75,000,000 and (B) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries and (ii) 15,000,000 for any such joint venture formed single enterprise or acquired after the Effective Date shall comply with subsection 7.10(d);
(n) New Holdings 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 or FSHCOs; provided the amount of such Investments shall not exceed in the aggregate $50,000,000 at any time outstanding;
(o) New Holdings or any of its Restricted Subsidiaries may acquire obligations of one or more directors, officers, employees, members or management or consultants of any of New Holdings or its Restricted Subsidiaries in connection with such person’s acquisition of shares of the Parent, so long as no cash is actually advanced by New Holdings or any of its Restricted Subsidiaries to such persons in connection with the acquisition of any such obligations;
(p) New Holdings 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) New Holdings and its Restricted Subsidiaries may acquire assets under a Permitted Asset Swap;
(r) New Holdings and its Restricted Subsidiaries may make other Investments in an aggregate amount not to exceed the Available Amount at such time;
(s) [Reserved];
(t) New Holdings 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 the Parent or (ii) the Net Proceeds of any substantially concurrent issuance of Capital Stock, which is not Disqualified Stock, by Parent (other than any issuance 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), 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)(iii)); provided that (x) immediately before and after making such Investment, no Default or Event of Default shall have occurred and be continuing, (y) in the case of clause (ii) in respect of an issuance by Parent, the proceeds thereof have been contributed by Parent in cash as common equity to New Holdings or such Restricted Subsidiary and (z) in the case of clause (ii), such issuance is to a Person other than a Group Member;
(u) New Holdings and its Restricted Subsidiaries may make other Investments not to exceed at any time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), together with all other Investments made in reliance on this clause (u), the greater of (i) $75,000,000 and (ii) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries; and
(i) New Holdings and its Restricted Subsidiaries may (x) make Investments in a Receivables Subsidiary in connection with a Receivables Facility; provided that any such Investment in a Receivables Subsidiary is in the form of a contribution of additional accounts receivable or as customary Investments in a Receivables Subsidiary in connection with a Receivables Facility and (y) make other customary Investments in connection with a Receivables Facility and (ii) a Receivables Subsidiary may purchase accounts receivable pursuant to a Securitization Repurchase Obligation in connection with a Receivables Facilityproject. For purposes of calculating this Section 7.9(g), 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 cash from such Investment (from dispositions or otherwise) (which amount referred to in this clause (y) shall not exceed the amount of such Investment at the time such Investment was made). The amount of any consideration paid for any Investment consisting of the provision of services or the transfer of non-cash assets "net amount" shall be equal to the fair market value aggregate amount of such services or non-cash assetsall capital contributions less any dividends paid to the Company and/or Subsidiaries, as the case may be, as determined by New Holdings in good faiththe Venture Subsidiaries, SPUD Subsidiaries, MPUD Subsidiary Group members and/or Unrestricted Subsidiaries.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase or otherwise acquire 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, any other Person (all of the foregoing, collectively, “Investments”), except:
(a) (i) loans or advances by New Holdings or any of its Restricted Subsidiaries in respect of intercompany accounts attributable to the operation of the Borrowers’ cash management system and (ii) loans or advances by New Holdings or any of its Restricted Subsidiaries to a Borrower or Subsidiary Guarantor (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor);
(b) Investments by New Holdings and its Restricted Subsidiaries in Restricted Subsidiaries of New Holdings that are not Borrowers or Subsidiary Guarantors; provided that at all times the aggregate amount of all such Investments at any time outstanding, together with any guarantees by New Holdings and its Restricted Subsidiaries of Indebtedness of a Restricted Subsidiary that is not a Borrower or Subsidiary Guarantor, shall not exceed $50,000,000;
(c) Investments by New Holdings and the Restricted Subsidiaries, not otherwise described in this subsection 8.7, in Borrowers or in Subsidiary Guarantors (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor) that otherwise are not prohibited under the terms of this Agreement;
(d) any Restricted Subsidiary of New Holdings may make Investments in New Holdings (by way the form of capital contribution or otherwise);
(e) New Holdings 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) New Holdings or any extensions 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 New Holdings or any such Restricted Subsidiary not to exceed $10,000,000 in the aggregate at any one time;
(g) New Holdings or any of its Restricted Subsidiaries may make payroll advances trade credit in the ordinary course of business;
(hii) New Holdings Investments in Cash Equivalents;
(iii) Investments in the form of loans and advances to employees of the Borrower or any of its Restricted Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable consistent with past practices, and Investments in the form of loans and advances to shareholders of the Borrower or dischargeable trusts or similar estate planning entities of or for the benefit of any such shareholder the proceeds of which are used to pay life insurance premiums on the life of such shareholder;
(iv) Investments by the Borrower in its Restricted Subsidiaries and by any Restricted Subsidiary in the Borrower or in any other Restricted Subsidiary; provided that the aggregate amount of Investments by the Borrower or any Material Subsidiary of the Borrower in Restricted Subsidiaries of the Borrower which are not Guarantors shall not exceed at any time the sum of (A) (x) $2,500,000 in respect of Subsidiaries which are Regulated Subsidiaries on the date hereof, (y) $15,000,000 in respect of Regulated Subsidiaries not in existence on the date hereof and (z) $10,000,000 in respect of all other non-Guarantor Restricted Subsidiaries plus (B) the aggregate amount of Investments in such Restricted Subsidiaries of the Borrower that are not Guarantors made in accordance with customary trade terms (provided that nothing in this clause shall prevent New Holdings 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 Borrower’s cash management practices in the ordinary course of business, as management deems reasonable in the circumstanceseach case inclusive of any Investments permitted pursuant to any other clause of this subsection 5.02(g);
(iv) New Holdings and its Restricted Subsidiaries may make Investments in connection with asset the form of notes or securities received as consideration for sales of assets permitted by pursuant to subsection 8.6(e5.02(e), ;
(fvi) or (g) (Investments in Joint Ventures and non-Consolidated Subsidiaries and Affiliates to the extent permitted under such subsections and subsection 4.6(b)Section 5.02(k);
(jvii) existing Investments described in Schedule 8.7;
(k) New Holdings 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) [reserved], (iii) all actions required to be taken with respect to any acquired assets or acquired or newly formed Restricted Subsidiary under subsection 7.10 shall be taken substantially simultaneously with consummation of such acquisition (or such longer period of time as provided under subsection 7.10 or as the Administrative Agent shall agree), (iv) any such newly acquired Restricted Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by subsection 8.2 and (v) with respect to any such acquisition that involves aggregate consideration in excess of $20,000,000, the Borrower Agent has delivered to the Administrative Agent a certificate of a Responsible Officer to the effect set forth in clauses (i) through (iv) 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 New Holdings) given by New Holdings and its Restricted Subsidiaries for all acquisitions of assets by non-Loan Parties or Persons that do not become a Guarantor consummated after the Effective Date in reliance on this clause (k) shall not exceed $75,000,000;
(i) Investments by New Holdings 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 Subsidiary5.02(d);
(mviii) New Holdings and its Restricted Subsidiaries may make loans Investments in foreign currencies or advances to, or acquisitions otherwise in time deposits or other Investments in, Unrestricted Subsidiaries securities of foreign Governmental Authorities or other Persons foreign Persons, if required by the action of a foreign Governmental Authority or to fund working capital requirements for the operations of the Borrower or any Restricted Subsidiary in a foreign country; and
(exclusive ix) Investments to the extent not otherwise prohibited by any other provision of Persons that are, or become, Foreign Subsidiaries or FSHCOs) that constitute or are in connection with joint ventures, provided (i) the amount of such loans, advances, acquisitions and Investments, when taken together with any guarantees incurred pursuant to subsection 8.4(g), shall not exceed Section 5.02 in the aggregate the greater ordinary course of (A) $75,000,000 and (B) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries and (ii) any such joint venture formed or acquired after the Effective Date shall comply with subsection 7.10(d);
(n) New Holdings 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 or FSHCOs; provided the amount of such Investments shall not exceed in the aggregate $50,000,000 at any time outstanding;
(o) New Holdings or any of its Restricted Subsidiaries may acquire obligations of one or more directors, officers, employees, members or management or consultants of any of New Holdings or its Restricted Subsidiaries in connection with such person’s acquisition of shares of the Parent, so long as no cash is actually advanced by New Holdings or any of its Restricted Subsidiaries to such persons in connection with the acquisition of any such obligations;
(p) New Holdings 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) New Holdings and its Restricted Subsidiaries may acquire assets under a Permitted Asset Swap;
(r) New Holdings and its Restricted Subsidiaries may make other Investments business in an aggregate amount outstanding at any time not to exceed the Available Amount at such time;
(s) [Reserved];
(t) New Holdings 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 the Parent or (ii) the Net Proceeds of any substantially concurrent issuance of Capital Stock, which is not Disqualified Stock, by Parent (other than any issuance 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), 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)(iii)); provided that (x) immediately before and after making such Investment, no Default or Event of Default shall have occurred and be continuing, (y) in the case of clause (ii) in respect of an issuance by Parent, the proceeds thereof have been contributed by Parent in cash as common equity to New Holdings or such Restricted Subsidiary and (z) in the case of clause (ii), such issuance is to a Person other than a Group Member;
(u) New Holdings and its Restricted Subsidiaries may make other Investments not to exceed at any time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), together with all other Investments made in reliance on this clause (u), the greater of (i) $75,000,000 and (ii) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries; and
(i) New Holdings and its Restricted Subsidiaries may (x) make Investments in a Receivables Subsidiary in connection with a Receivables Facility; provided that any such Investment in a Receivables Subsidiary is in the form of a contribution of additional accounts receivable or as customary Investments in a Receivables Subsidiary in connection with a Receivables Facility and (y) make other customary Investments in connection with a Receivables Facility and (ii) a Receivables Subsidiary may purchase accounts receivable pursuant to a Securitization Repurchase Obligation in connection with a Receivables Facility. 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 cash from such Investment (from dispositions or otherwise) (which amount referred to in this clause (y) shall not exceed the amount of such Investment at the time such Investment was made). The amount of any consideration paid for any Investment consisting of the provision of services or the transfer of non-cash assets shall be equal to the fair market value of such services or non-cash assets, as the case may be, as determined by New Holdings in good faith5,000,000.
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 or maintain any other investment in, any Person (all of the foregoing, “Investments”), except:
(a) (i) loans or advances by New Holdings the Borrower or any of its Restricted Subsidiaries in respect of intercompany accounts attributable to the operation of the Borrowers’ Borrower’s cash management system and (ii) loans or advances by New Holdings the Borrower or any of its Restricted Subsidiaries to a Borrower or Subsidiary Guarantor (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor);
(b) Investments by New Holdings the Borrower and its Restricted Subsidiaries in Restricted Subsidiaries of New Holdings the Borrower that are not Borrowers or Subsidiary Guarantors; provided that at all times the aggregate amount of all such Investments at any time outstandingInvestments, together with any guarantees by New Holdings the Borrower and its Restricted Subsidiaries of Indebtedness of a Restricted Subsidiary that is not a Borrower or Subsidiary Guarantor, shall not exceed $50,000,00025,000,000;
(c) Investments by New Holdings the Borrower and the Restricted Subsidiaries, not otherwise described in this subsection 8.7, in Borrowers the Borrower or in Subsidiary Guarantors (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor) that otherwise are not prohibited under the terms of this Agreement;
(d) any Restricted Subsidiary of New Holdings the Borrower may make Investments in New Holdings the Borrower (by way of capital contribution or otherwise);
(e) New Holdings 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 6,000,000 per individual institution and $25,000,000 30,000,000 in the aggregate at any one time;
(f) New Holdings 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 New Holdings the Borrower or any such Restricted Subsidiary not to exceed $10,000,000 12,000,000 in the aggregate at any one time;
(g) New Holdings the Borrower or any of its Restricted Subsidiaries may make payroll advances in the ordinary course of business;
(h) New Holdings the Borrower or any of its Restricted Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (provided that nothing in this clause shall prevent New Holdings 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);
(i) New Holdings 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 extent permitted under such subsections and subsection 4.6(b))Required Lenders consent;
(j) existing Investments of the Borrower described in Schedule 8.7;
(k) New Holdings 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) [reserved]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) 5.75 to 1.0, (iii) all actions required to be taken with respect to any acquired assets or acquired or newly formed Restricted Subsidiary under subsection 7.10 shall be taken substantially simultaneously with consummation of such acquisition (or such longer period of time as provided under subsection 7.10 or as the Administrative Agent shall agree)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 Restricted Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by subsection 8.2 and (vvi) with respect to any such acquisition that involves aggregate consideration in excess of $20,000,000, the Borrower Agent has delivered to the Administrative Agent a certificate of a Responsible Officer to the effect set forth in clauses (i) through (ivv) 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 New Holdingsthe Borrower) given by New Holdings the Borrower and its Restricted Subsidiaries for all acquisitions of assets by non-Loan Parties or Persons that do not become a Guarantor consummated after the Effective Closing Date in reliance on this clause (k) of Persons that do not, upon the acquisition thereof, become Subsidiary Guarantors shall not exceed $75,000,00030,000,000;
(i) Investments by New Holdings 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) New Holdings the Borrower and its Restricted Subsidiaries may make loans or advances to, or acquisitions or other Investments in, Unrestricted Subsidiaries or other Persons (exclusive of (i) Unrestricted Subsidiaries and (ii) Persons that which are, or become, Foreign Subsidiaries or FSHCOsSubsidiaries) that constitute or are in connection with joint ventures, provided (i) the amount consideration paid by the Borrower or any of its Subsidiaries in all such loanstransactions after the Closing Date, advances, acquisitions and Investments, when taken together with any guarantees incurred pursuant to subsection 8.4(g), shall does not exceed in the aggregate the greater of (A) $75,000,000 and (B) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries and (ii) any such joint venture formed or acquired after the Effective Date shall comply with subsection 7.10(d)20,000,000;
(n) New Holdings 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 or FSHCOsthat are Restricted Subsidiaries (including new Foreign Subsidiaries that are to become Restricted Subsidiaries); provided that the amount consideration paid by the Borrower or any of such Investments shall 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 $50,000,000 at any time outstanding6,000,000;
(o) New Holdings 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 New Holdings the Borrower or its Restricted Subsidiaries in connection with such person’s acquisition of shares of the ParentBorrower, so long as no cash is actually advanced by New Holdings the Borrower or any of its Restricted Subsidiaries to such persons in connection with the acquisition of any such obligations;
(p) New Holdings 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(b4.5(b);
(q) New Holdings the Borrower and its Restricted Subsidiaries may acquire assets under a Permitted Asset Swap;
(r) New Holdings the Borrower and its Restricted Subsidiaries may make other Investments in an aggregate amount not to exceed the Available Amount at such time;
(s) [Reserved]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) New Holdings 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 the Parent 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 issuance 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), ) or a Restricted Payment pursuant to subsection 8.8(b) or 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)(iii)); provided that that, (x) immediately before and after making such Investment, no Default or Event of Default shall have occurred and be continuing), (y) in the case of clause (ii) in respect of an issuance by Parent, the proceeds thereof have been contributed by Parent in cash as common equity to New Holdings the Borrower or such Restricted Subsidiary and (z) in the case of clause (ii), such issuance is to a Person other than a Group Member;; and
(u) New Holdings the Borrower and its Restricted Subsidiaries may make other Investments not to exceed at any time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities)exceed, together with all other Investments made in reliance on this clause (u), the greater of (i) $75,000,000 175,000,000 and (ii) 4the lesser of (x) 33% of consolidated total assets of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries; and
(i) New Holdings Borrower and its Restricted Subsidiaries may (xas of the most recently ended fiscal quarter of the Borrower for which financial statements have been delivered pursuant to subsection 7.1(a) make Investments in a Receivables Subsidiary in connection with a Receivables Facility; provided that any such Investment in a Receivables Subsidiary is in the form of a contribution of additional accounts receivable or 7.1(b), as customary Investments in a Receivables Subsidiary in connection with a Receivables Facility applicable, and (y) make other customary Investments in connection with a Receivables Facility and (ii) a Receivables Subsidiary may purchase accounts receivable pursuant to a Securitization Repurchase Obligation in connection with a Receivables Facility$515,000,000. 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 cash from such Investment (from dispositions or otherwise) (which amount referred to in this clause (y) shall not exceed the amount of such Investment at the time such Investment was made). The amount of any consideration paid for any Investment consisting of the provision of services or the transfer of non-cash assets shall be equal to the fair market value of such services or non-cash assets, as the case may be, as determined by New Holdings in good faith.
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 or maintain any other investment in, any Person (all of the foregoing, “Investments”), except:
(a) (i) loans or advances by New Holdings or any of its Restricted Subsidiaries in respect of intercompany accounts attributable to the operation of the Borrowers’ cash management system and (ii) loans or advances by New Holdings or any of its Restricted Subsidiaries to a Borrower or Subsidiary Guarantor (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor);
(b) Investments by New Holdings and its Restricted Subsidiaries in Restricted Subsidiaries of New Holdings that are not Borrowers or Subsidiary Guarantors; provided that at all times the aggregate amount of all such Investments at any time outstanding, together with any guarantees by New Holdings and its Restricted Subsidiaries of Indebtedness of a Restricted Subsidiary that is not a Borrower or Subsidiary Guarantor, shall not exceed $50,000,00010,000,000;
(c) Investments by New Holdings and the Restricted Subsidiaries, not otherwise described in this subsection Section 8.7, in Borrowers or in Subsidiary Guarantors (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor) that otherwise are not prohibited under the terms of this Agreement;
(d) any Restricted Subsidiary of New Holdings may make Investments in New Holdings (by way of capital contribution or otherwise);
(e) New Holdings 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) New Holdings 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 New Holdings or any such Restricted Subsidiary not to exceed $10,000,000 in the aggregate at any one time;
(g) New Holdings or any of its Restricted Subsidiaries may make payroll advances in the ordinary course of business;
(h) New Holdings or any of its Restricted Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (provided that nothing in this clause shall prevent New Holdings 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);
(i) New Holdings and its Restricted Subsidiaries may make Investments in connection with asset sales Asset Sales permitted by subsection Section 8.6(e), (f) or (g) (or to which the extent permitted under such subsections and subsection 4.6(b))Required Lenders consent;
(j) existing Investments described in Schedule 8.7;
(k) New Holdings 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) [reserved]as of the date of such acquisition, the Consolidated First Lien 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)) is less than or equal to the greater of (A) the Consolidated First Lien Net Leverage Ratio as of the last day of the most recently ended fiscal quarter and (B) 5.00 to 1.00, (iii) all actions required to be taken with respect to any acquired assets or acquired or newly formed Restricted Subsidiary under subsection Section 7.10 shall be taken substantially simultaneously with consummation of such acquisition (or such longer period of time as provided under subsection Section 7.10 or as the Administrative Agent shall agree), (iv) any such newly acquired Restricted Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by subsection Section 8.2 and (v) with respect to any such acquisition that involves aggregate consideration in excess of $20,000,000, the Borrower Agent has delivered to the Administrative Agent a certificate of a Responsible Officer to the effect set forth in clauses (i) through (iv) 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 New Holdings) given by New Holdings and its Restricted Subsidiaries for all acquisitions of assets by non-Loan Parties or Persons that do not become a Guarantor consummated after the Effective Date in reliance on this clause (k) shall not exceed $75,000,000;
(i) Investments by New Holdings 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 Section 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) New Holdings and its Restricted Subsidiaries may make loans or advances to, or acquisitions or other Investments in, Unrestricted Subsidiaries or other Persons (exclusive of Persons that which are, or become, Foreign Subsidiaries or FSHCOsSubsidiaries) that constitute or are in connection with joint ventures, provided (i) the amount of such loans, advances, acquisitions and Investments, when taken together with any guarantees incurred pursuant to subsection 8.4(g), Investments shall not exceed in the aggregate the greater of (A) $75,000,000 30,000,000 at any time outstanding for Investments made with cash or Cash Equivalents and (B) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries $20,000,000 at any time outstanding for other Investments and (ii) any such joint venture formed or acquired after the Effective Date shall comply with subsection Section 7.10(d);
(n) New Holdings 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 or FSHCOsSubsidiaries; provided the amount of such Investments shall not exceed in the aggregate $50,000,000 5,000,000 at any time outstanding;
(o) New Holdings or any of its Restricted Subsidiaries may acquire obligations of one or more directors, officers, employees, members or management or consultants of any of New Holdings or its Restricted Subsidiaries in connection with such person’s acquisition of shares of the Parent, so long as no cash is actually advanced by New Holdings or any of its Restricted Subsidiaries to such persons in connection with the acquisition of any such obligations;
(p) New Holdings and its Restricted Subsidiaries may acquire assets constituting a Permitted Reinvestment with the Net Proceeds from Asset Sales in accordance with the reinvestment rights provided under subsection Section 4.6(b)) of the Term Loan Credit Agreement;
(q) New Holdings and its Restricted Subsidiaries may acquire assets under a Permitted Asset Swap;
(r) New Holdings and its Restricted Subsidiaries may make other Investments in an aggregate amount not to exceed so long as immediately before and after making such Investment, the Available Amount at such timePayment Conditions shall be satisfied;
(s) [Reserved]New Holdings and its Subsidiaries may consummate the transactions contemplated by the Merlin Asset Purchase Agreement;
(t) New Holdings 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 the Parent or (ii) the Net Proceeds of any substantially concurrent issuance of Capital Stock, which is not Disqualified Stock, by Parent (other than any issuance 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), have been applied for Restricted Payments under subsection Section 8.8(c) or subsection Section 8.8(h) or have been applied for prepayments of Indebtedness under subsection Section 8.15(b)(iii)); provided that that, (x) immediately before and after making such Investment, no Default or Event of Default shall have occurred and be continuing, (y) in the case of clause (ii) in respect of an issuance by Parent, the proceeds thereof have been contributed by Parent in cash as common equity to New Holdings or such Restricted Subsidiary and (z) in the case of clause (ii), such issuance is to a Person other than a Group Member;
(u) New Holdings and its Restricted Subsidiaries may make other Investments not to exceed at any time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities)outstanding, together with all other Investments made in reliance on this clause (u), the greater of $50,000,000;
(iv) $75,000,000 and (ii) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries[Reserved]; and
(iw) New Holdings and its Restricted Subsidiaries may (x) make the Investments in a Receivables Subsidiary in connection with a Receivables Facility; provided that any such Investment in a Receivables Subsidiary is in contemplated by the form of a contribution of additional accounts receivable or as customary Investments in a Receivables Subsidiary in connection with a Receivables Facility and (y) make other customary Investments in connection with a Receivables Facility and (ii) a Receivables Subsidiary may purchase accounts receivable pursuant to a Securitization Repurchase Obligation in connection with a Receivables FacilityRestructuring Transactions. 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 cash from such Investment (from dispositions or otherwise) (which amount referred to in this clause (y) shall not exceed the amount of such Investment at the time such Investment was made). The amount of any consideration paid for any Investment consisting of the provision of services or the transfer of non-cash assets shall be equal to the fair market value of such services or non-cash assets, as the case may be, as determined by New Holdings in good faith.
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 or maintain any other investment in, any Person (all of the foregoing, “Investments”)Person, except:
(a) (i) loans or advances by New Holdings or any of its Restricted Subsidiaries in respect of intercompany accounts attributable to the operation of the Borrowers’ Company’s cash management system and (ii) loans or advances by New Holdings the Company or any of its Restricted Subsidiaries to a Borrower or Subsidiary Guarantor (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor), or to a First-Tier Permitted Minority-Interest Radio Subsidiary for working capital needs evidenced by a Pledged Note so long as such loans or advances constitute Indebtedness of the primary obligor that is not subordinate to any other Indebtedness of such obligor;
(b) Investments by New Holdings in Permitted Minority-Interest Subsidiaries described in clauses (a) and its Restricted Subsidiaries (b) of the definition of “Permitted Minority-Interest Subsidiary” in Restricted an aggregate amount not to exceed (i) $40,000,000 over the term of this Agreement and (ii) $20,000,000 outstanding at any one time;
(c) Investments in Subsidiaries of New Holdings the Company (including Permitted Minority-Interest Subsidiaries) that are not Borrowers Subsidiary Guarantors (or a Subsidiary Guarantorsthat 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 at any time outstanding, together with any guarantees by New Holdings and its Restricted Subsidiaries of Indebtedness of a Restricted Subsidiary that is not a Borrower or Subsidiary Guarantor, shall not exceed $50,000,000five percent (5%) of the total assets of the Company and its Subsidiaries on a consolidated basis;
(cd) Investments by New Holdings and the Restricted SubsidiariesInvestments, not otherwise described in this subsection 8.713.7, in Borrowers or in Subsidiary Guarantors (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor) that otherwise are not prohibited under the terms of this Agreement;
(de) any Restricted Subsidiary of New Holdings the Company may make Investments investments in New Holdings the Company (by way of capital contribution or otherwise);
(ef) New Holdings the Company and its Restricted Subsidiaries may invest in, acquire and hold (i) Cash Equivalents and other 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 50,000 per individual institution account and $25,000,000 500,000 in the aggregate at any one time;
(fg) New Holdings 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 New Holdings the Company or any such Restricted Subsidiary not to exceed $10,000,000 in the aggregate at any one timeSubsidiary;
(gh) New Holdings the Company or any of its Restricted Subsidiaries may make payroll advances in the ordinary course of business;
(hi) New Holdings the Company or any of its Restricted Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (provided that nothing in this clause (i) shall prevent New Holdings the Company 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);
(ij) New Holdings the Company and its Restricted Subsidiaries may make Investments investments in connection with asset sales permitted by subsection 8.6(e), (f) 13.6 or (g) (to which the extent permitted under such subsections and subsection 4.6(b));
(j) existing Investments described in Schedule 8.7Required Lenders consent;
(k) New Holdings existing investments of the Company described in Schedule 13.7;
(l) the Company and its Restricted Subsidiaries may in a single transaction or series of related transactions, make non-hostile acquisitions (by merger, purchase, lease (including any lease that contains up-front payments and/or buyout options) or otherwise) of any businessassets of, or shares of the capital stock of or other equity interests in, a Person or 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 cannotinvestment, 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) the acquisition or investment is in a similar line of business as conducted by the Company and its Subsidiaries on the Closing Date, (ii) immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and (provided that iii) at the time of any such acquisition or investment (and after giving effect to loans, advances and investments in connection therewith or pursuant thereto), the Company would be in compliance with the covenants set forth in subsection 13.1 as of the most recently completed period of four consecutive fiscal quarters ending prior to such acquisition for which the financial statements and certificates required by subsections 12.1 and 12.2 have been delivered or for which comparable financial statements have been filed with the Securities and Exchange Commission, after giving pro forma effect to such transaction and to any other event occurring after such period as to which pro forma calculation is appropriate as if such acquisition or investment had occurred as of the first day of such period. All pro forma calculations required to be made pursuant to this clause definition shall (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) [reserved], (iii) all actions required to be taken with respect to any acquired assets or acquired or newly formed Restricted Subsidiary under subsection 7.10 shall be taken substantially simultaneously with consummation of such acquisition (or such longer period of time as provided under subsection 7.10 or as the Administrative Agent shall agree), (iv) any such newly acquired Restricted Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by subsection 8.2 and (v) with respect to any such acquisition include only those adjustments that involves aggregate consideration in excess of $20,000,000, the Borrower Agent has delivered are based on reasonably detailed written assumptions reasonably acceptable to the Administrative Agent a certificate of a Responsible Officer to the effect set forth in clauses (i) through (iv) 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 New Holdings) given by New Holdings and its Restricted Subsidiaries for all acquisitions of assets by non-Loan Parties or Persons that do not become a Guarantor consummated after the Effective Date in reliance on this clause (k) shall not exceed $75,000,000;
(i) Investments by New Holdings 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 be certified to by a Responsible Officer as having been prepared 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)good faith based upon reasonable assumptions;
(m) New Holdings the Company and its Restricted Subsidiaries may make loans or advances to, or acquisitions or other Investments investments in, Unrestricted Subsidiaries or other Persons (exclusive of Persons that which are, or become, Foreign Subsidiaries or FSHCOsSubsidiaries) that constitute or are in connection with joint venturesPermitted Joint Ventures, provided the consideration paid by the Company or any of its Subsidiaries in all such transactions after the Closing Date (i) net, in the amount case of such loans, advances, acquisitions investments and Investmentsother transfers, when taken together with of any guarantees incurred pursuant to subsection 8.4(g), shall 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 the greater of (Aa) $75,000,000 40,000,000 over the term of this Agreement and (Bb) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries and (ii) $20,000,000 outstanding at any such joint venture formed or acquired after the Effective Date shall comply with subsection 7.10(d)one time;
(n) New Holdings the Company and its Restricted Subsidiaries may make loans or advances to, or other Investments investments in, or otherwise transfer funds (including without limitation by way of repayment of loans or advances) to, Foreign Subsidiaries or FSHCOs(including new Foreign Subsidiaries); provided that the amount consideration paid by the Company or any of such Investments shall its 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 Company or its Subsidiaries (net of applicable taxes) after the Closing Date) does not exceed in the aggregate $50,000,000 at any time outstanding;2,000,000; and
(o) New Holdings or any of its Restricted Subsidiaries HoldCo may acquire obligations of one or more directors, officers, employees, members or management or consultants of any of New Holdings or its Restricted Subsidiaries make additional cash investments in connection with such person’s acquisition of shares of the Parent, so Company after the Closing Date as long as no cash is actually advanced by New Holdings or any of its Restricted Subsidiaries to such persons in connection with the acquisition of any such obligations;
(p) New Holdings 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) New Holdings and its Restricted Subsidiaries may acquire assets under a Permitted Asset Swap;
(r) New Holdings and its Restricted Subsidiaries may make other Investments in an aggregate amount not to exceed the Available Amount at such time;
(s) [Reserved];
(t) New Holdings 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 the Parent or such investments are evidenced by (iiA) the Net Proceeds of any substantially concurrent issuance of Capital Stock, which is not Disqualified Stock, by Parent (other than any issuance the proceeds of which have been included in the calculation of the Available Amount subordinated notes having terms that are at least as favorable to the extent such proceeds have been applied pursuant Credit Parties and the Lenders as is the Company Subordinated Note, (B) non-mandatorily redeemable common stock and/or (C) preferred stock having terms satisfactory to the definition of “Available Amount” to make an Investment pursuant to subsection 8.7(r), 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)(iii)); provided that (x) immediately before and after making such Investment, no Default or Event of Default shall have occurred and be continuing, (y) in the case of clause (ii) in respect of an issuance by Parent, the proceeds thereof have been contributed by Parent in cash as common equity to New Holdings or such Restricted Subsidiary and (z) in the case of clause (ii), such issuance is to a Person other than a Group Member;
(u) New Holdings and its Restricted Subsidiaries may make other Investments not to exceed at any time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), together with all other Investments made in reliance on this clause (u), the greater of (i) $75,000,000 Administrative Agent and (ii) 4% HoldCo funds such investments from the proceeds of (A) subordinated notes having terms reasonably satisfactory to the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries; and
Administrative Agent, (iB) New Holdings and its Restricted Subsidiaries may preferred stock having terms reasonably satisfactory to the Administrative Agent and/or (xC) make Investments in a Receivables Subsidiary in connection with a Receivables Facility; provided non-mandatorily redeemable common stock (it being agreed that any such Investment in a Receivables Subsidiary is in instrument or stock certificate issued to HoldCo shall be pledged to the form of a contribution of additional accounts receivable or as customary Investments in a Receivables Subsidiary in connection with a Receivables Facility and (y) make other customary Investments in connection with a Receivables Facility and (ii) a Receivables Subsidiary may purchase accounts receivable Administrative Agent pursuant to a Securitization Repurchase Obligation in connection with a Receivables Facility. 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 cash from such Investment (from dispositions or otherwise) (which amount referred to in this clause (y) shall not exceed the amount of such Investment at the time such Investment was madeapplicable Pledge Agreement). The amount of any consideration paid for any Investment consisting of the provision of services or the transfer of non-cash assets shall be equal to the fair market value of such services or non-cash assets, as the case may be, as determined by New Holdings in good faith.
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 or maintain any other investment in, any Person (all of the foregoing, “Investments”)Person, except:
(a) (i) loans or advances by New Holdings or any of its Restricted Subsidiaries in respect of intercompany accounts attributable to the operation of the Borrowers’ Company's cash management system and (ii) loans or advances by New Holdings the Company or any of its Restricted Subsidiaries to a Borrower or Subsidiary Guarantor (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor), or to a First-Tier Permitted Minority-Interest Radio Subsidiary for working capital needs evidenced by a Pledged Note so long as such loans or advances constitute Indebtedness of the primary obligor that is not subordinate to any other Indebtedness of such obligor;
(b) Investments by New Holdings in Permitted Minority-Interest Subsidiaries described in CLAUSES (A) and its Restricted Subsidiaries (B) of the definition of "Permitted Minority-Interest Subsidiary" in Restricted an aggregate amount not to exceed (i) $40,000,000 over the term of this Agreement and (ii) $20,000,000 outstanding at any one time;
(c) Investments in Subsidiaries of New Holdings the Company (including Permitted Minority-Interest Subsidiaries) that are not Borrowers Subsidiary Guarantors (or a Subsidiary Guarantorsthat 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 PROVIDED that at all times the aggregate amount of all such Investments at any time outstanding, together with any guarantees by New Holdings and its Restricted Subsidiaries of Indebtedness of a Restricted Subsidiary that is not a Borrower or Subsidiary Guarantor, shall not exceed $50,000,000five percent (5%) of the total assets of the Company and its Subsidiaries on a consolidated basis;
(cd) Investments by New Holdings and the Restricted SubsidiariesInvestments, not otherwise described in this subsection 8.713.7, in Borrowers or in Subsidiary Guarantors (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor) that otherwise are not prohibited under the terms of this Agreement;
(de) Intermediate Holding and any Restricted Subsidiary of New Holdings the Company may make Investments investments in New Holdings the Company (by way of capital contribution or otherwise);
(ef) New Holdings Intermediate Holding and its Restricted Subsidiaries may invest in, acquire and hold (i) Cash Equivalents and other 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 50,000 per individual institution account and $25,000,000 500,000 in the aggregate at any one time;; 82
(fg) New Holdings 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 New Holdings the Company or any such Restricted Subsidiary not to exceed $10,000,000 in the aggregate at any one timeSubsidiary;
(gh) New Holdings the Company or any of its Restricted Subsidiaries may make payroll advances in the ordinary course of business;
(hi) New Holdings the Company or any of its Restricted Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (provided PROVIDED that nothing in this clause (i) shall prevent New Holdings the Company 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);
(ij) New Holdings the Company and its Restricted Subsidiaries may make Investments investments in connection with asset sales permitted by subsection 8.6(e), (f) 13.6 or (g) (to which the extent permitted under such subsections and subsection 4.6(b));
(j) existing Investments described in Schedule 8.7Required Lenders consent;
(k) New Holdings 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 existing investments of the outstanding Capital Stock of any corporation or other entity Company described in Schedule 13.7 (other than any director’s qualifying shares or any options for equity interests that cannot, as a matter of law, such Schedule may be cancelled, redeemed or otherwise extinguished without updated on 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) [reserved], (iii) all actions required to be taken with respect to any acquired assets or acquired or newly formed Restricted Subsidiary under subsection 7.10 shall be taken substantially simultaneously with consummation of such acquisition (or such longer period of time as provided under subsection 7.10 or as the Administrative Agent shall agree), (iv) any such newly acquired Restricted Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by subsection 8.2 and (v) with respect to any such acquisition that involves aggregate consideration in excess of $20,000,000, the Borrower Agent has delivered to the Administrative Agent a certificate of a Responsible Officer to the effect set forth in clauses (i) through (iv) 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 New Holdings) given by New Holdings and its Restricted Subsidiaries for all acquisitions of assets by non-Loan Parties or Persons that do not become a Guarantor consummated after the Effective Closing Date in reliance on this clause (k) shall not exceed $75,000,000accordance with subsection 16.1);
(il) Investments by New Holdings the Company and any Restricted its Subsidiaries in any businessmay make Permitted Acquisitions and may make loans or advances to, divisionor acquisitions or investments in, 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 other Persons in connection with or anticipation pursuant to the terms of such Person becoming a Restricted Subsidiary)Permitted Acquisitions;
(m) New Holdings the Company and its Restricted Subsidiaries may make loans or advances to, or acquisitions or other Investments investments in, Unrestricted Subsidiaries or other Persons (exclusive of Persons that which are, or become, Foreign Subsidiaries or FSHCOsSubsidiaries) that constitute or are in connection with joint venturesPermitted Joint Ventures, provided PROVIDED the consideration paid by the Company or any of its Subsidiaries in all such transactions after the Closing Date (i) net, in the amount case of such loans, advances, acquisitions investments and Investmentsother transfers, when taken together with of any guarantees incurred pursuant to subsection 8.4(g), shall 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 the greater of (Aa) $75,000,000 40,000,000 over the term of this Agreement and (Bb) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries and (ii) $20,000,000 outstanding at any such joint venture formed or acquired after the Effective Date shall comply with subsection 7.10(d)one time;
(n) New Holdings the Company and its Restricted Subsidiaries may make loans or advances to, or other Investments 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 Company or FSHCOs; provided any of its Subsidiaries in all transactions after the amount Closing Date (net, in the case of such Investments shall loans, advances, 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 $50,000,000 at any time outstanding2,000,000;
(o) New Holdings or any of the Company and its Restricted Subsidiaries may acquire obligations of one or more directors, officers, employees, members or management or consultants of any of New Holdings or its Restricted Subsidiaries investments in ISPs and Internet Companies in connection with such person’s acquisition of shares of the Parent, so long as no cash is actually advanced Internet Trade Out Transactions permitted by New Holdings or any of its Restricted Subsidiaries to such persons in connection with the acquisition of any such obligations;
subsection 13.15; and (p) New Holdings 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) New Holdings and its Restricted Subsidiaries may acquire assets under a Permitted Asset Swap;
(r) New Holdings and its Restricted Subsidiaries Intermediate Holding may make other Investments additional cash investments in an aggregate amount not to exceed the Available Amount at such time;
(s) [Reserved];
(t) New Holdings Company after the Closing Date and its Restricted Subsidiaries may make Investments to the extent the consideration paid therefor consists solely of as long as (i) Capital Stock, which is not Disqualified Stock, of the Parent or such investments are evidenced by (iiA) the Net Proceeds of any substantially concurrent issuance of Capital Stock, which is not Disqualified Stock, by Parent (other than any issuance the proceeds of which have been included in the calculation of the Available Amount subordinated notes having terms that are at least as favorable to the extent such proceeds have been applied pursuant Credit Parties and the Lenders as is the Company Subordinated Intercompany Note, (B) non-mandatorily redeemable common stock and/or (C) preferred stock having terms satisfactory to the definition of “Available Amount” to make an Investment pursuant to subsection 8.7(r), 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)(iii)); provided that (x) immediately before and after making such Investment, no Default or Event of Default shall have occurred and be continuing, (y) in the case of clause (ii) in respect of an issuance by Parent, the proceeds thereof have been contributed by Parent in cash as common equity to New Holdings or such Restricted Subsidiary and (z) in the case of clause (ii), such issuance is to a Person other than a Group Member;
(u) New Holdings and its Restricted Subsidiaries may make other Investments not to exceed at any time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), together with all other Investments made in reliance on this clause (u), the greater of (i) $75,000,000 Administrative Agent and (ii) 4% Intermediate Holdings funds such investments from additional investments made by HoldCo in Intermediate Holding and such investments by HoldCo are evidenced by and constitute the proceeds of (A) subordinated notes having terms substantially comparable to the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries; and
Subordinated HoldCo Debentures or having terms reasonably satisfactory to the Administrative Agent issued to MBO-VII, MBO-VIII or any other subordinated debt and/or equity fund which is an FL Affiliate, (iB) New Holdings and its Restricted Subsidiaries may preferred stock having terms reasonably satisfactory to the Administrative Agent and/or (xC) make Investments in a Receivables Subsidiary in connection with a Receivables Facility; provided non-mandatorily redeemable common stock (it being agreed that any such Investment in a Receivables Subsidiary is in instrument or stock certificate issued to Intermediate Holding or HoldCo shall be pledged to the form of a contribution of additional accounts receivable or as customary Investments in a Receivables Subsidiary in connection with a Receivables Facility and (y) make other customary Investments in connection with a Receivables Facility and (ii) a Receivables Subsidiary may purchase accounts receivable Administrative Agent pursuant to a Securitization Repurchase Obligation in connection with a Receivables Facility. 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 cash from such Investment (from dispositions or otherwise) (which amount referred to in this clause (y) shall not exceed the amount of such Investment at the time such Investment was madeapplicable Pledge Agreement). The amount of any consideration paid for any Investment consisting of the provision of services or the transfer of non-cash assets shall be equal to the fair market value of such services or non-cash assets, as the case may be, as determined by New Holdings in good faith.
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 or maintain any other investment in, any Person (all of the foregoing, “Investments”), except:
(a) (i) loans or advances by New Holdings or any of its Restricted Subsidiaries in respect of intercompany accounts attributable to the operation of the Borrowers’ Company’s cash management system and system, (ii) loans or advances by New Holdings the Company or any of its Restricted Subsidiaries to a Borrower or Subsidiary Guarantor (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor), and (iii) loans or advances by the Company or any of its Subsidiaries to a First-Tier Permitted Minority-Interest Radio Subsidiary for working capital needs evidenced by a Pledged Note so long as such loans or advances constitute Indebtedness of the primary obligor that is not subordinate to any other Indebtedness of such obligor;
(b) Investments in Permitted Minority-Interest Subsidiaries described in clauses (a) and (b) of the definition of “Permitted Minority-Interest Subsidiary” in an aggregate amount, together with the aggregate consideration for Investments permitted by New Holdings and subsection 13.7(m) (net of any repayments or return of capital in respect of Investments under subsection 13.7(m) actually received in cash by the Company or its Restricted Subsidiaries (net of applicable taxes) after the Closing Date), not to exceed $100,000,000 over the term of this Agreement;
(c) Investments in Restricted Subsidiaries of New Holdings the Company (including Permitted Minority-Interest Subsidiaries) that are not Borrowers Subsidiary Guarantors (or a Subsidiary Guarantorsthat 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 at any time outstanding, together with any guarantees by New Holdings and its Restricted Subsidiaries of Indebtedness of a Restricted Subsidiary that is not a Borrower or Subsidiary Guarantor, shall not exceed $50,000,00075,000,000;
(cd) Investments by New Holdings and the Restricted SubsidiariesInvestments, not otherwise described in this subsection 8.713.7, in Borrowers or in Subsidiary Guarantors (or a Restricted Subsidiary that would be a Borrower or Subsidiary Guarantor but for the lapse of time until such Restricted Subsidiary is required to be a Borrower or Subsidiary Guarantor) that otherwise are not prohibited under the terms of this Agreement;
(de) any Restricted Subsidiary of New Holdings the Company may make Investments in New Holdings the Company (by way of capital contribution or otherwise);
(ef) New Holdings the Company 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 1,000,000 per individual institution and $25,000,000 5,000,000 in the aggregate at any one time;
(fg) New Holdings 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 New Holdings the Company or any such Restricted Subsidiary not to exceed $10,000,000 in the aggregate at any one timeSubsidiary;
(gh) New Holdings the Company or any of its Restricted Subsidiaries may make payroll advances in the ordinary course of business;
(hi) New Holdings the Company or any of its Restricted Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (provided that nothing in this clause (i) shall prevent New Holdings the Company 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);
(ij) New Holdings the Company and its Restricted Subsidiaries may make Investments in connection with asset sales permitted by subsection 8.6(e), (f) 13.6 or (g) (to which the extent permitted under such subsections and subsection 4.6(b));
(j) existing Investments described in Schedule 8.7Required Lenders consent;
(k) New Holdings existing Investments of the Company described in Schedule 13.7;
(l) the Company and its Restricted Subsidiaries may in a single transaction or series of related transactions, make non-hostile acquisitions (by merger, purchase, lease (including any lease that contains up-front payments and/or buyout options) or otherwise) of any businessassets of, or shares of the capital stock of or other equity interests in, a Person or 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 cannotinvestment, 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) the acquisition or investment is in a similar, complementary or incidental line of business as conducted by the Company and its Subsidiaries on the Closing Date, (ii) immediately after giving effect thereto, no Default or Event of Default shall have occurred and be continuing and (provided that this iii) at the time of any such acquisition or Investment (and after giving effect to Investments in connection therewith or pursuant thereto), the Consolidated Total Net Leverage Ratio as of the most recently completed period of four consecutive fiscal quarters ending prior to such acquisition for which the financial statements and certificates required by subsections 12.1 and 12.2 (including any certificate described in clause (iii) shall not apply of the second sentence of subsection 12.1) have been delivered or for which comparable financial statements have been filed with respect the Securities and Exchange Commission, determined after giving pro forma effect to such transaction and to any other event occurring after such period as to which pro forma calculation is appropriate as if such acquisition or Investment had occurred as of the first day of such period, shall be equal to or less than the then applicable Consolidated Total Net Leverage Ratio Level. All pro forma calculations required to be 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), this definition shall (iix) [reserved], (iii) all actions required to be taken with respect to any acquired assets or acquired or newly formed Restricted Subsidiary under subsection 7.10 shall be taken substantially simultaneously with consummation of such acquisition (or such longer period of time as provided under subsection 7.10 or as the Administrative Agent shall agree), (iv) any such newly acquired Restricted Subsidiary shall not be liable for any Indebtedness except for Indebtedness permitted by subsection 8.2 and (v) with respect to any such acquisition include only those adjustments that involves aggregate consideration in excess of $20,000,000, the Borrower Agent has delivered are based on reasonably detailed written assumptions reasonably acceptable to the Administrative Agent a certificate of and (y) be certified to by a Responsible Officer to the effect set forth in clauses (i) through (iv) 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 having been prepared in good faith by the board of directors of New Holdings) given by New Holdings and its Restricted Subsidiaries for all acquisitions of assets by non-Loan Parties or Persons that do not become a Guarantor consummated after the Effective Date in reliance on this clause (k) shall not exceed $75,000,000;
(i) Investments by New Holdings 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)based upon reasonable assumptions;
(m) New Holdings the Company and its Restricted Subsidiaries may make loans or advances to, or acquisitions or other Investments in, Unrestricted Subsidiaries or other Persons (exclusive of Persons that which are, or become, Foreign Subsidiaries or FSHCOsSubsidiaries) that constitute or are in connection with joint venturesPermitted Joint Ventures, provided the consideration paid by the Company or any of its Subsidiaries in all such transactions after the Closing Date (inet, 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), together with the aggregate amount of such loans, advances, acquisitions and Investments, when taken together with any guarantees incurred pursuant to Investments permitted by subsection 8.4(g13.7(b), shall does not exceed in the aggregate the greater of (Ax) $75,000,000 100,000,000 over the term of this Agreement and (By) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries and (ii) $50,000,000 outstanding at any such joint venture formed or acquired after the Effective Date shall comply with subsection 7.10(d)one time;
(n) New Holdings the Company and its Restricted 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 or FSHCOs(including new Foreign Subsidiaries); provided that the amount consideration paid by the Company or any of such Investments shall its 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 Company or its Subsidiaries (net of applicable taxes) after the Closing Date) does not exceed in the aggregate $50,000,000 at any time outstanding10,000,000;
(o) New Holdings the Company or any of its Restricted Subsidiaries may acquire obligations of one or more directors, officers, employees, members or management or consultants of any of New Holdings the Company or its Restricted Subsidiaries in connection with such person’s acquisition of shares of the ParentCompany, so long as no cash is actually advanced by New Holdings the Company or any of its Restricted Subsidiaries to such persons in connection with the acquisition of any such obligations;
(p) New Holdings and its Restricted Subsidiaries the Company may acquire assets with the Net Proceeds from Asset Sales in accordance with the reinvestment rights provided under subsection 4.6(b);make Working Capital Payments; and
(q) New Holdings and its Restricted Subsidiaries may acquire assets Investments arising or made under a Permitted Asset Swap;
(r) New Holdings and its Restricted Subsidiaries may make other Investments in an aggregate amount not to exceed the Available Amount at such time;
(s) [Reserved];
(t) New Holdings 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 the Parent or (ii) the Net Proceeds of any substantially concurrent issuance of Capital Stock, which is not Disqualified Stock, Receivables Financings permitted by Parent (other than any issuance 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(r13.2(m), 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)(iii)); provided that (x) immediately before and after making such Investment, no Default or Event of Default shall have occurred and be continuing, (y) in the case of clause (ii) in respect of an issuance by Parent, the proceeds thereof have been contributed by Parent in cash as common equity to New Holdings or such Restricted Subsidiary and (z) in the case of clause (ii), such issuance is to a Person other than a Group Member;
(u) New Holdings and its Restricted Subsidiaries may make other Investments not to exceed at any time outstanding (without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of cash or marketable securities), together with all other Investments made in reliance on this clause (u), the greater of (i) $75,000,000 and (ii) 4% of the Consolidated Total Assets of New Holdings and its Restricted Subsidiaries; and
(i) New Holdings and its Restricted Subsidiaries may (x) make Investments in a Receivables Subsidiary in connection with a Receivables Facility; provided that any such Investment in a Receivables Subsidiary is in the form of a contribution of additional accounts receivable or as customary Investments in a Receivables Subsidiary in connection with a Receivables Facility and (y) make other customary Investments in connection with a Receivables Facility and (ii) a Receivables Subsidiary may purchase accounts receivable pursuant to a Securitization Repurchase Obligation in connection with a Receivables Facility. 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 cash from such Investment (from dispositions or otherwise) (which amount referred to in this clause (y) shall not exceed the amount of such Investment at the time such Investment was made). The amount of any consideration paid for any Investment consisting of the provision of services or the transfer of non-cash assets shall be equal to the fair market value of such services or non-cash assets, as the case may be, as determined by New Holdings in good faith.
Appears in 1 contract
