Limitation on Investments, Loans and Advances. (a) extensions of trade credit in the ordinary course of business; (b) Investments in cash and Cash Equivalents; (c) loans and advances to officers, directors or employees of the Guarantor, the Borrower or their Subsidiaries (i) for travel, entertainment and relocation expenses in the ordinary course of business, (ii) for other purposes in an aggregate amount for the Guarantor, the Borrower and their Subsidiaries, together with the aggregate amount of all Guarantee Obligations permitted pursuant to subsection 14.3(j)(iii), not to exceed $2,000,000 at any one time outstanding, (iii) relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity or as otherwise specified in subsection 14.9 and (iv) existing on the Closing Date and described in Schedule 14.8(f); (d) Investments by the Borrower in, and loans, advances and capital contributions by the Borrower to, any Wholly Owned Subsidiary and investments by Subsidiaries in, and loans, advances and capital contributions by Subsidiaries to, the Borrower and Wholly Owned Subsidiaries; (e) the acquisition of all or substantially all of the business or assets or the Capital Stock of any Person or any business unit thereof or all or substantially all of the Capital Stock of any Person (a "Permitted --------- Acquisition"), provided that: ----------- -------- (i) upon giving effect to such Permitted Acquisition on a pro forma basis, either (A) the Borrower would be in Historical Pro Forma Compliance with respect to such Permitted Acquisition, or (B) the Borrower would not be in Historical Pro Forma Compliance but would otherwise be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and the aggregate cash purchase price paid by the Borrower and its Subsidiaries for all Permitted Acquisitions made pursuant to this subclause (B) does not exceed an amount initially equal to $25,000,000, which amount shall be increased by $5,000,000 on each anniversary of the Closing Date, or (C) the Borrower would be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and such Permitted Acquisition is financed entirely through the issuance of equity (excluding any financing through the assumption of Indebtedness not for borrowed money in connection with the Acquisition); (ii) no Default or Event of Default has occurred and is continuing at the time of consummation of such Permitted Acquisition or will result therefrom; and (iii) any such acquisition of Capital Stock of any Person may exclude any Capital stock of such Person to the extent necessary in the good faith judgment of the Borrower, to permit such acquisition to be accounted for as a recapitalization; (f) Investments existing on the Closing Date and described in Schedule 14.8(f), setting forth the respective amounts of such Investments as of a recent date; (g) Investments in notes receivable and other instruments and securities obtained in connection with transactions permitted by subsection 14.5(d); (h) Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business or otherwise described in subsection 14.2(c), (d) or (j); (i) Investments representing non-cash consideration received by the Borrower or any of its Subsidiaries in connection with any sale or other disposition of the property of the Borrower or any of its Subsidiaries, provided that in the case of any sale or other disposition permitted under -------- subsection 14.5(j), such non-cash consideration constitutes not more than 25% of the aggregate consideration received in connection with such sale or other disposition and any such non-cash consideration received by the Borrower or any of its Domestic Subsidiaries is pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documents; (j) Investments by the Borrower or any of its Subsidiaries in one or more Persons in connection with joint ventures or similar arrangements in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Borrower or such Subsidiary in an aggregate amount not to exceed $7,500,000 at any one time outstanding; (k) Investments representing evidences of Indebtedness, securities or other property received from another Person by the Borrower or any of its Subsidiaries in connection with any bankruptcy proceeding or other reorganization of such other Person or as a result of foreclosure, perfection or enforcement of any Lien or exchange for evidences of Indebtedness, securities or other property of such other Person held by the Borrower or any of its Subsidiaries; provided that any such -------- securities or other property received by the Borrower or any of its Domestic Subsidiaries is pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documents; (l) loans and advances to Management Investors in connection with the purchase by such Management Investors of Capital Stock of the Guarantor or the Borrower of up to $20,000,000 outstanding at any one time; provided -------- that such amount shall be reduced by the aggregate principal amount of Indebtedness in respect of Guarantee Obligations permitted by subsection 14.3(e); (m) Investments in the Capital Stock of the Guarantor which is held by the Guarantor as treasury stock and is restored to unissued status or is eliminated from authorized shares, or options in respect thereof; (n) Investments constituting Capital Expenditures, to the extent permitted by subsection 14.7; (o) Investments of the Borrower and its Subsidiaries under any Hedging Arrangements; and (p) Investments not otherwise permitted by the preceding clauses of subsection 14.8 in an aggregate amount not to exceed $15,000,000 at any one time outstanding.
Appears in 1 contract
Samples: Credit Agreement (Dynatech Corp)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in, any Person ("Investments"), except:
(a) extensions of trade credit and investments in leases in the ordinary course of business;
(b) Investments in cash and Cash Equivalents;
(ci) loans and advances to officers, directors or employees of the Guarantor, Investments by the Borrower or their Subsidiaries in any Domestic Subsidiary, including any new Subsidiary, (iii) intercompany loans to the extent permitted by Section 8.2 and (iii) Investments by the Borrower in any Foreign Subsidiary (it being agreed for travel, entertainment and relocation expenses purposes of this clause (iii) that receivables arising solely from actual bona fide intercompany transactions entered into in the ordinary course of businessbusiness shall not constitute Investments) in an amount not to exceed $10,000,000 minus the amount of any Indebtedness of Foreign Subsidiaries permitted by Section 8.2(i);
(d) loans and advances by the Borrower or its Subsidiaries to their respective directors, (ii) for other purposes officers and employees in an aggregate principal amount for the Guarantor, the Borrower and their Subsidiaries, together with the aggregate amount of all Guarantee Obligations permitted pursuant to subsection 14.3(j)(iii), not to exceed exceeding $2,000,000 at any one time outstanding, (iii) relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity or as otherwise specified in subsection 14.9 and (iv) existing on the Closing Date and described in Schedule 14.8(f);
(d) Investments by the Borrower in, and loans, advances and capital contributions by the Borrower to, any Wholly Owned Subsidiary and investments by Subsidiaries in, and loans, advances and capital contributions by Subsidiaries to, the Borrower and Wholly Owned Subsidiaries;
(e) loans, advances or Investments in existence on the acquisition of all Initial Closing Date and listed on Schedule 8.9, and extensions, renewals, modifications or substantially all of the business restatements or assets or the Capital Stock of any Person or any business unit thereof or all or substantially all of the Capital Stock of any Person (a "Permitted --------- Acquisition")replacements thereof, provided that: ----------- --------
that no such extension, renewal, modification or restatement shall (i) upon giving effect to such Permitted Acquisition on a pro forma basisincrease the amount of the original loan, either advance or investment, or (Aii) adversely affect the Borrower would be in Historical Pro Forma Compliance interests of the Lenders with respect to such Permitted Acquisitionoriginal loan, advance or (B) investment or the Borrower would not be in Historical Pro Forma Compliance but would otherwise be in compliance on a pro forma basis with each interests of the financial covenants contained Lenders under this Agreement or any other Loan Document in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and the aggregate cash purchase price paid by the Borrower and its Subsidiaries for all Permitted Acquisitions made pursuant to this subclause (B) does not exceed an amount initially equal to $25,000,000, which amount shall be increased by $5,000,000 on each anniversary of the Closing Date, or (C) the Borrower would be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and such Permitted Acquisition is financed entirely through the issuance of equity (excluding any financing through the assumption of Indebtedness not for borrowed money in connection with the Acquisition);
(ii) no Default or Event of Default has occurred and is continuing at the time of consummation of such Permitted Acquisition or will result therefrom; and
(iii) any such acquisition of Capital Stock of any Person may exclude any Capital stock of such Person to the extent necessary in the good faith judgment of the Borrower, to permit such acquisition to be accounted for as a recapitalizationmaterial respect;
(f) Investments existing on the Closing Date and described in Schedule 14.8(fpermitted by Sections 8.2(b), setting forth the respective amounts of such Investments as of a recent date8.4(a), (b), (g), (i), (j), (k) and (l) and 8.8;
(g) Investments in promissory notes receivable and other instruments and securities obtained in connection with transactions permitted by subsection 14.5(d);
(h) Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business or otherwise described in subsection 14.2(c), (d) or (j);
(i) Investments representing similar non-cash consideration received by the Borrower or any of and its Subsidiaries in connection with any sale or other disposition the dispositions permitted by Section 8.6;
(h) Investments consisting of the property of the Borrower or any of its Subsidiaries, provided that in the case of any sale or other disposition permitted under -------- subsection 14.5(j), such non-cash consideration constitutes not more than 25% of the aggregate consideration Interest Rate Agreements;
(i) Investments (including debt obligations and Capital Stock) received in connection with such sale the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disposition disputes with, customers and any such non-cash consideration received by suppliers arising in the Borrower or any ordinary course of its Domestic Subsidiaries is pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documentsbusiness;
(j) in addition to the foregoing, Investments by the Borrower or any of its Subsidiaries in one or more Persons in connection with joint ventures or similar arrangements in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Borrower or such Subsidiary in an aggregate amount (at cost, without regard to any write down or write up thereof) at any one time outstanding not to exceed $7,500,000 7,500,000, provided that cash Investments at any one time outstanding;outstanding shall not exceed $1,000,000 in Persons other than Subsidiaries or Affiliates of CCHC; and
(k) so long as after giving effect thereto no Default or Event of Default shall have occurred and be continuing, Investments representing evidences of Indebtedness, securities or other property received from another Person by the Borrower or any of its Subsidiaries in connection with any bankruptcy proceeding or other reorganization of such other Person or as a result of foreclosure, perfection or enforcement of any Lien or exchange for evidences of Indebtedness, securities or other property of such other Person held by the Borrower or any of its Subsidiaries; provided that any such -------- securities or other property received by the Borrower or any of its Domestic Subsidiaries is pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documents;
(l) loans and advances to Management Investors in connection with the purchase by such Management Investors of Capital Stock of the Guarantor or the Borrower of up to $20,000,000 outstanding at any one time; provided -------- that such amount shall be reduced by the aggregate principal amount of Indebtedness in respect of Guarantee Obligations permitted by subsection 14.3(e);
(m) Investments in the Capital Stock of the Guarantor which is held by the Guarantor as treasury stock and is restored to unissued status or is eliminated from authorized shares, or options in respect thereof;
(n) Investments constituting Capital Expenditures, to the extent permitted by subsection 14.7;
(o) Investments of the Borrower and its Subsidiaries under any Hedging Arrangements; and
(p) Investments not otherwise permitted by the preceding clauses of subsection 14.8 resulting from Permitted Acquisitions in an aggregate amount which may include Indebtedness permitted by Section 8.2(l) not to exceed the sum of (A) the amount of $15,000,000 40,000,000 and (B) the amount of common stock of CCHC issued subsequent to the Initial Closing Date in connection with Permitted Acquisitions and (C) the portion of Excess Cash Flow for all prior fiscal years commencing with 1997 retained by the Borrower and not utilized pursuant to Section 8.8(b) or the last sentence of this Section 8.9, provided, that (i) the Administrative Agent shall have received, with copies for each Lender at least 15 days prior to such Permitted Acquisition, (I) such opinions (including with respect to environmental matters), certificates and copies of agreements (including any one time outstandingPermitted Acquisition documents) as it shall reasonably request and (II) a certificate of a Responsible Officer of the Borrower after giving effect to such Permitted Acquisition showing the aggregate purchase price (including the assumption of any Indebtedness) for Permitted Acquisitions made by the Borrower and its Subsidiaries since the Initial Closing Date, (ii) such actions as may be required or reasonably requested to ensure that the Collateral Agent, for the ratable benefit of the Secured Parties, has a perfected first priority security interest in any assets acquired, subject to Liens permitted by Section 8.3, shall have been taken, (iii) (I) on a pro forma basis for the period of four consecutive fiscal quarters most recently ended (assuming the consummation of such Permitted Acquisition and the incurrence or assumption of any Indebtedness in connection therewith occurred on the first day of such period of four consecutive fiscal quarters), the Borrower shall be in compliance with the covenants contained in Section 8.1 and (II) the Administrative Agent shall have received calculations in reasonable detail reasonably satisfactory to it showing compliance with the requirements of this clause (iii) certified by a Responsible Officer of the Borrower and (iv) the Required Lenders shall have given their prior consent to such Permitted Acquisition (except, with respect to this clause (iv), for Investments made subsequent to the Closing Date which do not exceed in the aggregate $5,000,000, provided that at least $7,500,000 is available under the Revolving Credit Facility on the date such Investments are made and after giving effect thereto).
(i) Investments consisting of the investment of Net Cash Proceeds not required to be applied to prepay the Loans pursuant to Section 2.10, including (x) with respect to the investment of proceeds of the insurance and condemnation proceeds not required to prepay the Loans pursuant to Section 2.10 and (y) with respect to the investment of proceeds of the sale of assets which are permitted pursuant to Section 8.6; and (ii) Investments consisting of the investment of Excess Cash Flow generated during prior fiscal years (beginning with Excess Cash Flow generated in the fiscal year ended in September 1997 but, in each case, including the retained portion of the Excess Cash Flow for only those periods where the Excess Cash Flow payment has theretofore occurred) and not required to be applied to prepay the Loans pursuant to Section 2.10.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting all or a material part of a business unit of, or make any other investment in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in cash and Cash Equivalents;
(c) Guarantee Obligations permitted by Section 7.2;
(d) loans and advances to officers, directors or employees of the Guarantor, the Borrower or their its Subsidiaries in the ordinary course of business (i) including, without limitation, for travel, entertainment and relocation expenses in the ordinary course of business, (iiexpenses) for other purposes in an aggregate amount for the Guarantor, the Borrower and their Subsidiaries, together with the aggregate amount of all Guarantee Obligations permitted pursuant to subsection 14.3(j)(iii), its Subsidiaries not to exceed $2,000,000 250,000 at any one time outstanding, (iii) relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity or as otherwise specified in subsection 14.9 and (iv) existing on the Closing Date and described in Schedule 14.8(f);
(d) Investments by the Borrower in, and loans, advances and capital contributions by the Borrower to, any Wholly Owned Subsidiary and investments by Subsidiaries in, and loans, advances and capital contributions by Subsidiaries to, the Borrower and Wholly Owned Subsidiaries;
(e) the acquisition of all or substantially all of the business or assets or the Capital Stock of any Person or any business unit thereof or all or substantially all of the Capital Stock of any Person (a "Permitted --------- Acquisition"), provided that: ----------- --------
(i) upon giving effect to such Permitted Acquisition on a pro forma basis, either (A) the Borrower would be in Historical Pro Forma Compliance with respect to such Permitted Acquisition, or (B) the Borrower would not be in Historical Pro Forma Compliance but would otherwise be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and the aggregate cash purchase price paid by the Borrower and its Subsidiaries for all Permitted Acquisitions made pursuant to this subclause (B) does not exceed an amount initially equal to $25,000,000, which amount shall be increased by $5,000,000 on each anniversary of the Closing Date, or (C) the Borrower would be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and such Permitted Acquisition is financed entirely through the issuance of equity (excluding any financing through the assumption of Indebtedness not for borrowed money in connection with the Acquisition);
(ii) no Default or Event of Default has occurred and is continuing at the time of consummation of such Permitted Acquisition or will result therefrom; and
(iii) any such acquisition of Capital Stock of any Person may exclude any Capital stock of such Person to the extent necessary in the good faith judgment of the Borrower, to permit such acquisition to be accounted for as a recapitalization;
(f) Investments existing on the Closing Date and described in Schedule 14.8(f), setting forth the respective amounts of such Investments as of a recent date;
(g) Investments in notes receivable and other instruments and securities obtained in connection with transactions permitted by subsection 14.5(d);
(h) Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business or otherwise described in subsection 14.2(c), (d) or (j);
(i) Investments representing non-cash consideration received investments by the Borrower or any of its Subsidiaries in connection with any sale or other disposition of the property of the Borrower or any of its SubsidiariesPerson that, provided that prior to such investment, is a Wholly Owned Subsidiary Guarantor;
(f) Loans by Xxxxx Finance Company or Xxxxx Sugar Corporation in the case ordinary course of business not to exceed $5,000,000 in the aggregate outstanding at any sale or other disposition permitted under -------- subsection 14.5(jtime;
(g) advances, loans, extensions of credit existing on the date hereof and listed on Schedule 7.8(g), such non-cash consideration constitutes not more than 25% ;
(h) advances consisting of the aggregate consideration received in connection with such sale payment or other disposition and any such non-cash consideration received prepayment by the Borrower or any of its Domestic Subsidiaries is pledged to the Administrative Agent of operating expenses and repair and maintenance expenses for the benefit of the Lenders Leased Plants pursuant to the Security Documentsterms of the relevant Plant Lease Documents so long as (i) the aggregate unreimbursed amount of all such advances does not exceed $15,000,000 at any time, (ii) the Borrower's right to be paid or reimbursed for such advances is secured by perfected Liens in the inventory of sugar processed at the Leased Plants and all accounts receivable and other proceeds from the sale or other disposition of such processed sugar, and (iii) the payment or reimbursement terms applicable to such advances (including the amount and type of assets subject to the Liens required by clause (ii) above) are acceptable to the Required Lenders;
(ji) Investments investments made by the Borrower or any of its Subsidiaries in one or more Persons in connection with joint ventures or similar arrangements in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Borrower or such Subsidiary Xxxxx Finance Company in an aggregate amount outstanding at any one time not to exceed $7,500,000 at any one time outstanding;
(k) Investments representing evidences of Indebtedness, securities or other property received from another Person by the Borrower or any of its Subsidiaries in connection with any bankruptcy proceeding or other reorganization of such other Person or as a result of foreclosure, perfection or enforcement of any Lien or exchange for evidences of Indebtedness, securities or other property of such other Person held by the Borrower or any of its Subsidiaries; provided that any such -------- securities or other property received by the Borrower or any of its Domestic Subsidiaries is pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documents;
(l) loans and advances to Management Investors in connection with the purchase by such Management Investors of Capital Stock of the Guarantor or the Borrower of up to $20,000,000 outstanding at any one time; provided -------- that such amount shall be reduced by the aggregate principal amount of Indebtedness in respect of Guarantee Obligations permitted by subsection 14.3(e);
(m) Investments in the Capital Stock of the Guarantor which is held by the Guarantor as treasury stock and is restored to unissued status or is eliminated from authorized shares, or options in respect thereof;
(n) Investments constituting Capital Expenditures, to the extent permitted by subsection 14.7;
(o) Investments of the Borrower and its Subsidiaries under any Hedging Arrangements5,000,000; and
(pj) Investments not otherwise permitted by cash capital contributions to the preceding clauses SPV made prior to the date hereof, and investments and advances, if any, arising from the sale of subsection 14.8 in an aggregate amount not Receivables pursuant to exceed $15,000,000 at any one time outstandingthe Receivables Securitization Program.
Appears in 1 contract
Samples: Restructuring Credit Agreement (Imperial Sugar Co /New/)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (each an "Investment"), any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in cash and Cash Equivalents;
(c) Investments existing on the Effective Date and described in Schedule 8.9(c), setting forth the respective amounts of such Investments as of a recent date;
(d) Investments in notes receivable in connection with transactions permitted by subsection 8.6(a)(iii);
(e) loans and advances to officers, directors or employees of the GuarantorHolding, the Parent Borrower or any of their respective Subsidiaries (i) for travel, entertainment and relocation expenses in the ordinary course of businessbusiness for travel and entertainment or relocation expenses, (ii) existing on the Effective Date and described in Schedule 8.9(c), (iii) made after the Effective Date for other purposes in an aggregate amount for the Guarantorpurposes, the Borrower not to exceed (as to Holding and their all its Subsidiaries), together with the aggregate amount of all Guarantee Obligations permitted pursuant to subsection 14.3(j)(iii8.4(f)(iii), not to exceed $2,000,000 4,000,000 in the aggregate outstanding at any one time outstanding, or (iiiiv) relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity or as otherwise specified in subsection 14.9 and (iv) existing on the Closing Date and described in Schedule 14.8(f);
(d) Investments by the Borrower in, and loans, advances and capital contributions by the Borrower to, any Wholly Owned Subsidiary and investments by Subsidiaries in, and loans, advances and capital contributions by Subsidiaries to, the Borrower and Wholly Owned Subsidiaries;
(e) the acquisition of all or substantially all of the business or assets or the Capital Stock of any Person or any business unit thereof or all or substantially all of the Capital Stock of any Person (a "Permitted --------- Acquisition"), provided that: ----------- --------
(i) upon giving effect to such Permitted Acquisition on a pro forma basis, either (A) the Borrower would be in Historical Pro Forma Compliance with respect to such Permitted Acquisition, or (B) the Borrower would not be in Historical Pro Forma Compliance but would otherwise be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and the aggregate cash purchase price paid by the Borrower and its Subsidiaries for all Permitted Acquisitions made pursuant to this subclause (B) does not exceed an amount initially equal to $25,000,000, which amount shall be increased by $5,000,000 on each anniversary of the Closing Date, or (C) the Borrower would be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and such Permitted Acquisition is financed entirely through the issuance of equity (excluding any financing through the assumption of Indebtedness not for borrowed money in connection with the Acquisition);
(ii) no Default or Event of Default has occurred and is continuing at the time of consummation of such Permitted Acquisition or will result therefrom; and
(iii) any such acquisition of Capital Stock of any Person may exclude any Capital stock of such Person to the extent necessary in the good faith judgment of the Borrower, to permit such acquisition to be accounted for as a recapitalization8.11;
(f) Investments existing on by the Closing Date Parent Borrower in its Wholly Owned Subsidiaries (other than any Receivables Subsidiary) and described by such Subsidiaries in Schedule 14.8(fthe Parent Borrower and in Wholly Owned Subsidiaries of the Parent Borrower (other than any Receivables Subsidiary), setting forth the respective amounts of such Investments as of a recent date;
(g) Investments in notes receivable and other instruments and securities obtained in connection with transactions acquisitions expressly permitted by subsection 14.5(d)8.10;
(h) Investments of any of the Borrowers under Interest Rate Protection Agreements relating to Indebtedness of such Borrower under this Agreement, and Investments by the Parent Borrower and its Subsidiaries under Permitted Hedging Arrangements;
(i) any Investment by the Parent Borrower and its Subsidiaries which, in the judgment of the Parent Borrower, is reasonably necessary in connection with, and pursuant to, any Permitted Receivables Securitization;
(j) Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business or otherwise described in subsection 14.2(c8.3(c), (d) or (jf);
(ik) Investments representing non-cash consideration received by the Parent Borrower or any of its Subsidiaries in connection with any sale or other disposition of the property of the Borrower or any of its SubsidiariesAsset Sale, provided that in the case of any sale or other disposition Asset Sale permitted under -------- subsection 14.5(j8.6(a)(vii), such non-cash consideration constitutes not more than 25% of the aggregate consideration received in connection with such sale or other disposition Asset Sale and any such non-cash consideration received by the Parent Borrower or any of its Domestic Subsidiaries (other than Foreign Subsidiaries to the extent that the Parent Borrower's obligations would be secured by a pledge of such non-cash consideration) is pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documents;
(jl) Investments by the Parent Borrower or any of its Subsidiaries in one or more Persons a Person in connection with a joint ventures venture or similar arrangements arrangement in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Parent Borrower or such Subsidiary in an aggregate amount not to exceed $7,500,000 at any one time outstandingan amount equal to $10,000,000, provided that such amount shall be reduced by the aggregate principal amount of Indebtedness in respect of Guarantee Obligations permitted by subsection 8.4(n);
(km) Investments representing evidences of Indebtedness, securities or other property received from another Person by the Parent Borrower or any of its Subsidiaries in connection with any bankruptcy proceeding or other reorganization of such other Person or as a result of foreclosure, perfection or enforcement of any Lien or exchange for evidences of Indebtedness, securities or other property of such other Person held by the Parent Borrower or any of its Subsidiaries; , provided that any such -------- securities or other property received by the Parent Borrower or any of its Domestic Subsidiaries (other than Foreign Subsidiaries (to the extent that the Parent Borrower's obligations would be secured by a pledge of such securities or other property) and any Insurance Subsidiary) is, to the extent required under the Guarantee and Collateral Agreement, pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documents, and provided, further, that in the event that the aggregate expected value of such securities or other property received with respect to a Person is less than $250,000, the Parent Borrower or such Subsidiary may, rather than pledge such securities and other property to the Administrative Agent, dispose of such securities and other property within 180 days of the receipt thereof so long as the Net Cash Proceeds of such Disposition are utilized to prepay the Loans pursuant to subsection 4.4(c), and any such securities and other property not so disposed of by such 180th day shall, to the extent required under the Guarantee and Collateral Agreement, be pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documents;
(ln) loans and advances to Management Investors in connection with the purchase by such Management Investors of Capital Stock of the Guarantor or the Borrower Holding of up to $20,000,000 10,000,000 outstanding at any one time; , provided -------- that such amount shall be reduced by the aggregate principal amount of Indebtedness in respect of Guarantee Obligations permitted by subsection 14.3(e8.4(b);
(m) Investments in the Capital Stock of the Guarantor which is held by the Guarantor as treasury stock and is restored to unissued status or is eliminated from authorized shares, or options in respect thereof;
(n) Investments constituting Capital Expenditures, to the extent permitted by subsection 14.7;
(o) loans of up to $20,000,000 outstanding at any one time to Agents and Owner/Operators in the ordinary course of business for working capital purposes, provided that such amount shall be reduced by the aggregate principal amount of loans and advances in respect of Guarantee Obligations permitted by subsection 8.4(l);
(p) advances to Agents and Owner/Operators in the ordinary course of business for working capital purposes;
(q) Investments of by the Parent Borrower and its Subsidiaries under represented by any Hedging ArrangementsFinancing Lease or conditional sale of equipment by the Parent Borrower or any of its Subsidiaries to Agents or Owner/Operators;
(r) Investments constituting, or acquired with amounts constituting, reserves or surplus maintained by any Insurance Subsidiary in accordance with any Requirement of Law in respect of obligations pursuant to insurance policies issued by such Insurance Subsidiary in the ordinary course of its insurance business;
(s) loans and advances by the Parent Borrower or any of its Subsidiaries to Holding expressly permitted by subsection 8.7; and
(pt) Investments not otherwise permitted by the preceding clauses of this subsection 14.8 in an aggregate amount 8.9 not to exceed in the aggregate $15,000,000 at any one time outstanding10,000,000.
Appears in 1 contract
Samples: Credit Agreement (Relocation Management Systems Inc)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in cash and Cash Equivalents, investments by the Insurance Subsidiary in Permitted Insurance Company Investments and investments by the Offshore Joint Venture in Permitted Insurance Company Investments;
(c) loans and advances to officers, directors or employees of the Guarantor, the Borrower or their its Subsidiaries (i) for travel, entertainment and relocation expenses in the ordinary course of business, (ii) for other purposes business in an aggregate amount for the Guarantor, the Borrower and their Subsidiariesits Subsidiaries not to exceed, together with the aggregate amount of all when added to Guarantee Obligations permitted at any time outstanding pursuant to subsection 14.3(j)(iiiSection 7.4(d), not to exceed $2,000,000 10,000,000 outstanding at any one time outstanding, (iii) relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity or as otherwise specified in subsection 14.9 and (iv) existing on the Closing Date and described in Schedule 14.8(f)time;
(d) Investments investments by the Parent in the Borrower or any Subsidiary Guarantor, investments by the Borrower in, and loans, advances and capital contributions by the Borrower to, in any Wholly Owned Subsidiary Guarantor and investments by Subsidiaries in, and loans, advances and capital contributions by Subsidiaries to, any Subsidiary in the Borrower and Wholly Owned Subsidiariesor in any Subsidiary Guarantor;
(e) the acquisition of all investments, loans and advances (excluding those permitted by Section 7.10(l)) to any independent contractor, including any sales agents or substantially all of the business or assets or the Capital Stock of any Person capacity providers, performing services for Parent or any business unit thereof or all or substantially all of the Capital Stock of any Person (a "Permitted --------- Acquisition"), provided that: ----------- --------
(i) upon giving effect its Subsidiaries not to such Permitted Acquisition on a pro forma basis, either (A) the Borrower would be exceed $30,000,000 in Historical Pro Forma Compliance with respect to such Permitted Acquisition, or (B) the Borrower would not be in Historical Pro Forma Compliance but would otherwise be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and the aggregate cash purchase price paid by for the Borrower Parent and its Subsidiaries for all Permitted Acquisitions made pursuant to this subclause at any time outstanding and maturing not later than ten years after the incurrence thereof (B) does not exceed an amount initially equal to $25,000,000, which amount shall it being understood that the repayment thereof may be increased forgiven if certain performance targets or other specified conditions are met by $5,000,000 on each anniversary of the Closing Date, or (C) the Borrower would be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and such Permitted Acquisition is financed entirely through the issuance of equity (excluding any financing through the assumption of Indebtedness not for borrowed money in connection with the Acquisitionrelevant contractor);
(ii) no Default or Event of Default has occurred and is continuing at the time of consummation of such Permitted Acquisition or will result therefrom; and
(iii) any such acquisition of Capital Stock of any Person may exclude any Capital stock of such Person to the extent necessary in the good faith judgment of the Borrower, to permit such acquisition to be accounted for as a recapitalization;
(f) Investments existing on the Closing Date and described in Schedule 14.8(f), setting forth the respective amounts of such Investments as of a recent date;
short term loans (g) Investments in notes receivable and other instruments and securities obtained in connection with transactions excluding those permitted by subsection 14.5(dSection 7.10(1);
(h) Investments in the nature and compensation advances to any independent contractor performing services for it or for any of pledges or deposits with respect to leases or utilities provided to third parties its agents made in the ordinary course of business that do not exceed the projected revenues to be paid to such independent contractor within two months of such loans or otherwise described advances, and in subsection 14.2(cthe case of loans, which mature not later than two months after the making of such loans;
(g) any acquisition of all or a portion of the assets or Capital Stock of any Person that constitutes a business engaged primarily in the same business in which the Borrower and its Subsidiaries are engaged on the date of this Agreement or a business that is directly related thereto; provided that, (i) neither the Borrower nor any Subsidiary shall make an offer to purchase more than 10% of the Capital Stock of such Person in connection with any such acquisition unless such transaction has been approved by a majority of the board of directors of such Person (or such offer is made subject to approval by a majority of the board of directors) or such transaction has been approved by all of the Lenders; (ii) the requirements of Section 7.1 would be satisfied by the Parent and its Subsidiaries on a pro forma combined basis as at the end of the most recently ended fiscal quarter of the Parent for which financial statements have been delivered pursuant to Section 6.1 if each such acquisition had been completed on or prior to the first day of the four fiscal quarter period ended with such most recently ended fiscal quarter (excluding in such pro forma calculation any extraordinary or non-recurring items related to such acquisition); and (iii) if after giving effect to such acquisition, the Leverage Ratio would be greater than 2.50 to 1.00 on a pro forma combined basis (calculated in a manner consistent with that provided in the preceding clause (ii)), then the purchase price (dincluding the amount of any deferred purchase price, and all amounts applied within one year of the consummation of such acquisitions to the refinancing of any Financing Leases to which such assets or Persons are subject on the respective dates of consummation of such acquisitions, other than Indebtedness so applied to such refinancing) paid for all such acquisitions shall not exceed $50,000,000 in the aggregate in all fiscal quarters during which such greater Leverage Ratio exists;
(h) investments in notes and other securities received in the settlement of overdue debts and accounts payable in the ordinary course of business and for amounts which, individually or (j)in the aggregate, do not exceed $10,000,000 at any time outstanding;
(i) Investments representing non-cash consideration received investments by the Borrower or any of its Subsidiaries in connection with any sale or other disposition Commodity Price Protection Agreements, Exchange Rate Protection Agreements, and Interest Rate Protection Agreements; provided that, such investments in such Commodity Price Protection Agreements are made solely for the purpose of the property hedging purchase prices of fuel and not for speculation;
(j) investments of the Borrower or any of its Subsidiaries, provided that Subsidiary in the case of any sale or other disposition permitted under -------- subsection 14.5(j), such non-cash consideration constitutes not more than 25% Parent that constitute Indebtedness of the aggregate consideration received in connection with such sale or other disposition Parent pursuant to paragraphs (g) though (o) of Section 7.2.
(k) investments, loans and any such non-cash consideration received advances by the Borrower in an amount not to exceed $10,000,000 in the aggregate in partnerships, limited liability companies, and other business organizations that do not constitute Subsidiaries or joint ventures in which the Parent, the Borrower, or any of its Domestic their Subsidiaries is pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documentsa participant;
(jl) Investments investments, loans and/or advances by the Borrower in or any of its Subsidiaries in one to the Operator Financing Subsidiary or more Persons in connection with joint ventures or similar arrangements in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Borrower or such Subsidiary Financing Vehicle, as the case may be, in an aggregate amount not to exceed $7,500,000 10,000,000 at any one time outstanding, the proceeds of which shall be used by the Operator Financing Subsidiary or the Financing Vehicle, as the case may be, to make loans to independent contractors pursuant to the Operator Financing Program;
(m) loans by the Operator Financing Subsidiary or the Financing Vehicle, as the case may be, to independent contractors to finance such contractor’s acquisition of tractors, trailers, and related transportation equipment;
(n) other investments not to exceed $5,000,000 at any one time outstanding;
(ko) Investments representing evidences loans to its employees for the purpose of Indebtednessexercising employee stock options to purchase common stock of the Parent, securities which loans may be non-recourse;
(p) loans to its employees to purchase common stock of the Parent, which loans may be non-recourse, provided all such loans may not exceed $5,000,000 at any one time outstanding;
(q) the formation and funding of Receivables SPVs to engage in Permitted Receivables Transactions including, without limitation, investments in and loans to any Receivables SPVs in connection with a Permitted Receivables Transaction, provided that the Receivables SPV shall not have cash in excess of $5,000,000 for more than a 30 day period at any time; and
(r) loans or advances to, or other property received from another Person by investments in, Subsidiaries that are not Loan Parties and to joint ventures in which the Parent, the Borrower or any of its their Subsidiaries in connection with any bankruptcy proceeding is a participant; provided that, all such loans, advances, or other reorganization of such other Person or as a result of foreclosure, perfection or enforcement of any Lien or exchange for evidences of Indebtedness, securities or other property of such other Person held by the Borrower or any of its Subsidiaries; provided that any such -------- securities or other property received by the Borrower or any of its Domestic Subsidiaries is pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documents;
(l) loans and advances to Management Investors in connection with the purchase by such Management Investors of Capital Stock of the Guarantor or the Borrower of up to $20,000,000 outstanding at any one time; provided -------- that such amount shall be reduced by the aggregate principal amount of Indebtedness in respect of Guarantee Obligations permitted by subsection 14.3(e);
(m) Investments in the Capital Stock of the Guarantor which is held by the Guarantor as treasury stock and is restored to unissued status or is eliminated from authorized shares, or options in respect thereof;
(n) Investments constituting Capital Expenditures, to the extent permitted by subsection 14.7;
(o) Investments of the Borrower and its Subsidiaries under any Hedging Arrangements; and
(p) Investments investments may not otherwise permitted by the preceding clauses of subsection 14.8 in an aggregate amount not to exceed $15,000,000 50,000,000 at any one time outstanding.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or Contingent Obligation for the benefit of, or purchase, stock, bonds, notes, debentures or other securities of or any interest in, or make any other investment in, or acquire assets other than in the ordinary course of business from, any Person, except:
(a) extensions the Company may make loans or advances to, or investments in, any Subsidiary Guarantor, and any Subsidiary Guarantor may make loans or advances to, or investments in, the Company or any other Subsidiary Guarantor, to the extent the Indebtedness created thereby is permitted by subsection 8.1(e)(i);
(b) the Company and its Subsidiaries may invest in, acquire and hold Cash Equivalents;
(c) the Company or any of trade credit its Subsidiaries may make travel and entertainment advances and relocation loans in the ordinary course of business to officers and employees of the Company or any such Subsidiary;
(d) the Company or any of its Subsidiaries may make payroll advances in the ordinary course of business;
(be) Investments the Company or any of its Subsidiaries may acquire and hold receivables and promissory notes owing to it, if created or acquired in cash the ordinary course of business and Cash Equivalents;
payable or dischargeable in accordance with customary trade terms (c) loans and advances to officersprovided that nothing in this subsection 8.6 shall prevent the Company or any Subsidiary from offering such concessionary trade terms, directors or employees from receiving such investments in connection with the bankruptcy or reorganization of their respective suppliers or customers or the Guarantor, the Borrower settlement of disputes with such customers or their Subsidiaries (i) for travel, entertainment and relocation expenses suppliers arising in the ordinary course of business, as management deems reasonable in the circumstances);
(f) the Company and its Subsidiaries may make investments constituting non-cash consideration in connection with Asset Sales permitted by subsection 8.5; provided that (i) the amount of any such investment shall not exceed 10% of the aggregate consideration to be received by the Company and its Subsidiaries in respect of such Asset Sale and (ii) for other purposes to the extent that the amount of any such investment exceeds $20,000,000, the Company shall use its best efforts to (x) cause each such investment to be made in an aggregate amount such a form and on such terms so that such investment can be pledged to the Collateral Agent, for the Guarantorbenefit of the Lenders, and (y) pledge such investment to the Borrower Collateral Agent, for the benefit of the Lenders, on terms reasonably satisfactory to the Administrative Agent;
(g) the Company and their Subsidiariesits Subsidiaries may make loans or advances to, together with incur Contingent Obligations for the benefit of, make acquisitions from or of, and make investments in, other Persons, including, without limitation, Indebtedness described in subsection 8.1(e)(ii) and Contingent Obligations described in subsection 8.1(f); provided that (i) the aggregate amount of the consideration paid or invested and the amounts loaned, advanced or guaranteed by the Company and its Subsidiaries in all Guarantee Obligations permitted pursuant to subsection 14.3(j)(iii), not to exceed $2,000,000 at any one time outstanding, (iii) relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity or as otherwise specified in subsection 14.9 and (iv) existing on transactions after the Closing Date and described (net, in Schedule 14.8(f);
(d) Investments by the Borrower in, and case of loans, advances and or investments, of any repayments or return of capital contributions in respect thereof actually received in cash by the Borrower toCompany or such Subsidiary (net of applicable taxes) after the Closing Date), any Wholly Owned Subsidiary and investments by Subsidiaries in, and loans, advances and capital contributions by Subsidiaries to, when added to the Borrower and Wholly Owned Subsidiaries;
(e) the acquisition of all or substantially all of the business or assets or the Capital Stock amount of any Person transfers or any business unit thereof or all or substantially all dispositions of assets described in the Capital Stock of any Person (a "Permitted --------- Acquisition"proviso to subsection 8.5(c), provided that: ----------- --------
(i) upon giving effect to such Permitted Acquisition on a pro forma basis, either (A) the Borrower would be in Historical Pro Forma Compliance with respect to such Permitted Acquisition, or (B) the Borrower would not be in Historical Pro Forma Compliance but would otherwise be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and the aggregate cash purchase price paid by the Borrower and its Subsidiaries for all Permitted Acquisitions made pursuant to this subclause (B) does not exceed an aggregate amount initially equal to of $25,000,000, which amount shall be increased by $5,000,000 on each anniversary 50,000,000 in any fiscal year of the Closing Date, or (C) the Borrower would be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, Company and such Permitted Acquisition is financed entirely through the issuance of equity (excluding any financing through the assumption of Indebtedness not for borrowed money in connection with the Acquisition);
(ii) no Default or Event of Default has occurred and is continuing at the time of consummation of such Permitted Acquisition or will result therefrom; and
(iii) any such acquisition of Capital Stock of any Person may exclude any Capital stock of such Person to the extent necessary in the good faith judgment of the Borrower, to permit such acquisition to be accounted for as a recapitalization;
(f) Investments existing on the Closing Date and described in Schedule 14.8(f), setting forth the respective amounts of such Investments as of a recent date;
(g) Investments in notes receivable and other instruments and securities obtained in connection with transactions permitted by subsection 14.5(d)would occur after giving effect thereto;
(h) Investments the loan made by the Company to Holdings on the 1996 Closing Date in connection with the nature 1996 Refinancing, evidenced by the Holdings Note and in an aggregate principal amount of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business or otherwise described in subsection 14.2(c), (d) or (j)$100,000,000;
(i) Investments representing non-cash consideration received by the Borrower Company or any of its Subsidiaries in connection may make loans and advances to, and investments in, a limited liability company formed with any sale or other disposition GATX Capital Corporation as the initial majority equity investor for the purpose of acquiring, leasing and selling airplanes manufactured by the property of the Borrower or any of Company and its Subsidiaries, provided that in the case of any sale or other disposition permitted under -------- subsection 14.5(j), such non-cash consideration constitutes not more than 25% of the aggregate consideration received amount of such loans, advances and investments at any one time outstanding shall not exceed (after giving effect to repayments, distributions, dividends and other payments in connection with such sale or other disposition and any such non-cash consideration received by the Borrower or any of its Domestic Subsidiaries is pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documents;respect thereof) $40,000,000; and
(j) Investments by to the Borrower extent that the Company or any of its Subsidiaries in one or more Persons in connection with joint ventures or similar arrangements in respect has not otherwise made an acquisition pursuant to Section 8.6(j) of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Borrower or such Subsidiary in an aggregate amount not to exceed $7,500,000 at any one time outstanding;
(k) Investments representing evidences of Indebtedness1996 Credit Agreement, securities or other property received from another Person by the Borrower Company or any of its Subsidiaries may acquire, in connection with any bankruptcy proceeding one acquisition only, the capital stock or other reorganization all or substantially all of such other the assets of another Person or as a result any business unit or line of foreclosurebusiness of another Person, perfection or enforcement of any Lien or exchange for evidences of Indebtedness, securities or other property of such other Person held by the Borrower or any of its Subsidiaries; provided that any (i) such -------- securities Person, business unit or other property received by the Borrower or any line of its Domestic Subsidiaries business is pledged to the Administrative Agent for the benefit engaged in a business of the Lenders pursuant to same general type as the Security Documents;
(l) loans and advances to Management Investors in connection with the purchase by such Management Investors of Capital Stock of the Guarantor or the Borrower of up to $20,000,000 outstanding at any one time; provided -------- that such amount shall be reduced by the aggregate principal amount of Indebtedness in respect of Guarantee Obligations permitted by subsection 14.3(e);
(m) Investments in the Capital Stock of the Guarantor which is held by the Guarantor as treasury stock and is restored to unissued status or is eliminated from authorized shares, or options in respect thereof;
(n) Investments constituting Capital Expenditures, to the extent permitted by subsection 14.7;
(o) Investments of the Borrower Company and its Subsidiaries are engaged in, or a business related thereto, (ii) after giving effect to such acquisition the Company is in compliance on a pro forma basis as at the end of the most recent fiscal quarter for which financial statements have been furnished to the Lenders with the requirements of subsections 8.8 and 8.10 and no Default or Event of Default has occurred and is continuing and (iii) the purchase price of such acquisition (including any assumed or continuing indebtedness of such Person, business unit or line of business ("Permitted Acquisition Indebtedness"), but excluding any portion of such purchase price paid in common stock of Holdings), is not greater than $300,000,000 (the acquisition under any Hedging Arrangements; and
this paragraph (p) Investments not otherwise permitted by j), the preceding clauses of subsection 14.8 in an aggregate amount not to exceed $15,000,000 at any one time outstanding"Permitted Acquisition").
Appears in 1 contract
Limitation on Investments, Loans and Advances. (a) extensions of trade credit in the ordinary course of business;
(b) Investments in cash and Cash Equivalents;
(c) loans and advances to officers, directors or employees of the Guarantor, the Primary Borrower or their Subsidiaries (i) for travel, entertainment and relocation expenses in the ordinary course of business, (ii) for other purposes in an aggregate amount for the Guarantor, the Primary Borrower and their Subsidiaries, together with the aggregate amount of all Guarantee Obligations permitted pursuant to subsection 14.3(j)(iii), not to exceed $2,000,000 at any one time outstanding, (iii) relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity or as otherwise specified in subsection 14.9 and (iv) existing on the Closing Date and described in Schedule 14.8(f);
(d) Investments by the Primary Borrower in, and loans, advances and capital contributions by the Primary Borrower to, any Wholly Owned Subsidiary and investments by Subsidiaries in, and loans, advances and capital contributions by Subsidiaries to, the Primary Borrower and Wholly Owned Subsidiaries;
(e) the acquisition of all or substantially all of the business or assets or the Capital Stock of any Person or any business unit thereof or all or substantially all of the Capital Stock of any Person (a "Permitted --------- Acquisition"), provided that: ----------- --------------------- --------
(i) upon giving effect to such Permitted Acquisition on a pro forma basis, either (A) the Primary Borrower would be in Historical Pro Forma Compliance with respect to such Permitted Acquisition, or (B) the Primary Borrower would not be in Historical Pro Forma Compliance but would otherwise be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and the aggregate cash purchase price paid by the Primary Borrower and its Subsidiaries for all Permitted Acquisitions made pursuant to this subclause (B) after the Amendment Effective Date does not exceed an amount initially equal to $25,000,000, which amount shall be increased by $5,000,000 on each anniversary of the Closing Date10,000,000, or (C) the Primary Borrower would be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and such Permitted Acquisition is financed entirely through the issuance of equity (excluding any financing through the assumption of Indebtedness not for borrowed money in connection with the Acquisition);
(ii) no Default or Event of Default has occurred and is continuing at the time of consummation of such Permitted Acquisition or will result therefrom; and
(iii) any such acquisition of Capital Stock of any Person may exclude any Capital stock Stock of such Person to the extent necessary in the good faith judgment of the Primary Borrower, to permit such acquisition to be accounted for as a recapitalization;
(f) Investments existing on the Closing Date and described in Schedule 14.8(f), setting forth the respective amounts of such Investments as of a recent date;
(g) Investments in notes receivable and other instruments and securities obtained in connection with transactions permitted by subsection 14.5(d);
(h) Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business or otherwise described in subsection 14.2(c), (d) or (j);
(i) Investments representing non-cash consideration received by the Primary Borrower or any of its Subsidiaries in connection with any sale or other disposition of the property of the Primary Borrower or any of its Subsidiaries, provided that in -------- the case of any sale or other disposition permitted under -------- subsection 14.5(j), such non-cash consideration constitutes not more than 25% of the aggregate consideration received in connection with such sale or other disposition and any such non-cash consideration received by the Primary Borrower or any of its Domestic Subsidiaries is pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documents;
(j) Investments by the Primary Borrower or any of its Subsidiaries in one or more Persons in connection with joint ventures or similar arrangements in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Primary Borrower or such Subsidiary in an aggregate amount not to exceed $7,500,000 5,000,000 at any one time outstanding;
(k) Investments representing evidences of Indebtedness, securities or other property received from another Person by the Primary Borrower or any of its Subsidiaries in connection with any bankruptcy proceeding or other reorganization of such other Person or as a result of foreclosure, perfection or enforcement of any Lien or exchange for evidences of Indebtedness, securities or other property of such other Person held by the Primary Borrower or any of its Subsidiaries; provided that any such -------- securities or -------- other property received by the Primary Borrower or any of its Domestic Subsidiaries is pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documents;
(l) loans and advances to Management Investors in connection with the purchase by such Management Investors of Capital Stock of the Guarantor or the Primary Borrower of up to $20,000,000 5,000,000 outstanding at any one time; provided -------- that such -------- amount shall be reduced by the aggregate principal amount of Indebtedness in respect of Guarantee Obligations permitted by subsection 14.3(e);
(m) Investments in the Capital Stock of the Guarantor which is held by the Guarantor as treasury stock and is restored to unissued status or is eliminated from authorized shares, or options in respect thereof;
(n) Investments constituting Capital Expenditures, to the extent permitted by subsection 14.7;
(o) Investments of the Borrower and its Subsidiaries under any Hedging Arrangements; and
(p) Investments not otherwise permitted by the preceding clauses of subsection 14.8 in an aggregate amount not to exceed $15,000,000 at any one time outstanding.
Appears in 1 contract
Samples: Credit Agreement (Acterna Corp)
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting all or a material part of a business unit of, or make any other investment in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in cash and Cash Equivalents;
(c) Guarantee Obligations permitted by Section 7.2;
(d) loans and advances to officers, directors or employees of the Guarantor, the Borrower or their its Subsidiaries in the ordinary course of business (i) including, without limitation, for travel, entertainment and relocation expenses in the ordinary course of business, (iiexpenses) for other purposes in an aggregate amount for the Guarantor, the Borrower and their Subsidiaries, together with the aggregate amount of all Guarantee Obligations permitted pursuant to subsection 14.3(j)(iii), its Subsidiaries not to exceed $2,000,000 250,000 at any one time outstanding, (iii) relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity or as otherwise specified in subsection 14.9 and (iv) existing on the Closing Date and described in Schedule 14.8(f);
(d) Investments by the Borrower in, and loans, advances and capital contributions by the Borrower to, any Wholly Owned Subsidiary and investments by Subsidiaries in, and loans, advances and capital contributions by Subsidiaries to, the Borrower and Wholly Owned Subsidiaries;
(e) the acquisition of all or substantially all of the business or assets or the Capital Stock of any Person or any business unit thereof or all or substantially all of the Capital Stock of any Person (a "Permitted --------- Acquisition"), provided that: ----------- --------
(i) upon giving effect to such Permitted Acquisition on a pro forma basis, either (A) the Borrower would be in Historical Pro Forma Compliance with respect to such Permitted Acquisition, or (B) the Borrower would not be in Historical Pro Forma Compliance but would otherwise be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and the aggregate cash purchase price paid by the Borrower and its Subsidiaries for all Permitted Acquisitions made pursuant to this subclause (B) does not exceed an amount initially equal to $25,000,000, which amount shall be increased by $5,000,000 on each anniversary of the Closing Date, or (C) the Borrower would be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and such Permitted Acquisition is financed entirely through the issuance of equity (excluding any financing through the assumption of Indebtedness not for borrowed money in connection with the Acquisition);
(ii) no Default or Event of Default has occurred and is continuing at the time of consummation of such Permitted Acquisition or will result therefrom; and
(iii) any such acquisition of Capital Stock of any Person may exclude any Capital stock of such Person to the extent necessary in the good faith judgment of the Borrower, to permit such acquisition to be accounted for as a recapitalizationMerger;
(f) Investments existing on the Closing Date and described in Schedule 14.8(f), setting forth the respective amounts of such Investments as of a recent date;
(g) Investments in notes receivable and other instruments and securities obtained in connection with transactions permitted by subsection 14.5(d);
(h) Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business or otherwise described in subsection 14.2(c), (d) or (j);
(i) Investments representing non-cash consideration received investments by the Borrower or any of its Subsidiaries in connection the Borrower or any Person that, prior to such investment, is a Wholly Owned Subsidiary Guarantor;
(g) investments and reinvestments in the Borrower's portfolio of marketable securities in the ordinary course of business;
(h) Loans by Hollx Xxxance Company or Hollx Xxxar Corporation in the ordinary course of business not to exceed $15,000,000 in the aggregate outstanding at any time;
(i) investments made by the Borrower or any of its Subsidiaries with the proceeds of any sale Recovery Reinvestment Deferred Amount;
(j) advances, loans, extensions of credit existing on the date hereof and listed on Schedule 7.8(j);
(k) investments by the Borrower or other disposition any of its Subsidiaries constituting contributions of amounts the fair market value of which at the time of the property making thereof does not exceed, in the aggregate, an amount equal to 5% of Consolidated Tangible Assets as reflected in the financial statements most recently delivered pursuant to Section 6.1(a) or (b) prior to such time (with the fair market value of each such investment being measured at the time made and without giving effect to subsequent changes in value); provided that such investments are in joint venture arrangements of the Borrower or any of its Subsidiaries, provided Subsidiaries with entities that in are raw material suppliers or that are related to the case of any sale or other disposition permitted under -------- subsection 14.5(j), such non-cash consideration constitutes not more than 25% primary business of the aggregate consideration received in connection with such sale or other disposition and any such non-cash consideration received by the Borrower or any of its Domestic Subsidiaries is pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security DocumentsBorrower;
(jl) Investments investments made by the Borrower or any of its Subsidiaries in one or more Persons in connection with joint ventures or similar arrangements in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Borrower or such Subsidiary Hollx Xxxance Company in an aggregate amount outstanding at any one time not to exceed $7,500,000 at any one time outstanding;
(k) Investments representing evidences of Indebtedness, securities or other property received from another Person by the Borrower or any of its Subsidiaries in connection with any bankruptcy proceeding or other reorganization of such other Person or as a result of foreclosure, perfection or enforcement of any Lien or exchange for evidences of Indebtedness, securities or other property of such other Person held by the Borrower or any of its Subsidiaries3,000,000; provided that any such -------- securities or other property received by the Borrower or any of its Domestic Subsidiaries is pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documents;
(l) loans and advances to Management Investors in connection with the purchase by such Management Investors of Capital Stock of the Guarantor or the Borrower of up to $20,000,000 outstanding at any one time; provided -------- that such amount shall be reduced by the aggregate principal amount of Indebtedness in respect of Guarantee Obligations permitted by subsection 14.3(e);and
(m) Investments in the Capital Stock of the Guarantor which is held by the Guarantor as treasury stock and is restored to unissued status any other loans or is eliminated from authorized shares, or options in respect thereof;
(n) Investments constituting Capital Expenditures, to the extent permitted by subsection 14.7;
(o) Investments of the Borrower and its Subsidiaries under any Hedging Arrangements; and
(p) Investments investments not otherwise permitted by the preceding clauses of subsection 14.8 in under this Section 7.8 having an aggregate amount not to exceed $15,000,000 at any one time outstandingnot in excess of $10,000,000 (determined at any time as the aggregate initial amount of such investment or loan less returns or repayments of such investments at or prior to such time).
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any Investment, or purchase any assets constituting a business unit of, or make any other investment in, any Person, except:
(a) Permitted Investments;
(b) Investments existing on the Effective Date and listed on Schedule 8.8 hereof;
(c) extensions of trade credit in the ordinary course of business;
(b) Investments in cash and Cash Equivalents;
(cd) loans and advances to officers, directors or officers and employees of the Guarantor, the Borrower Company or their Subsidiaries (i) for travel, entertainment and relocation expenses any Subsidiary in the ordinary course of businessbusiness in an aggregate amount, not to exceed $1,000,000 at any one time outstanding;
(iie) Intercompany Loans, Advances or Investments made on or after the Effective Date to the Company, or by the Company to any Guarantor or by any Guarantor to the Company or any other Guarantor (provided that any Intercompany Loan hereunder shall be evidenced by and funded under an Intercompany Note which Intercompany Note shall be pledged to the Agent for other purposes the benefit of the Banks pursuant to the Domestic Security Agreement), provided that at the time any such loan, advance or investment is made (before and after giving effect thereto) no Event of Default has occurred and is continuing;
(f) loans and advances by the Company to Xxxxxxxxx.xxx (x) existing on the Effective Date, in the aggregate outstanding amount of $15,000,000 to Xxxxxxxxx.xxx and (y) after the Effective Date, until the consummation of the Xxxxxxxxx.xxx Acquisition additional loans and advances in an aggregate amount not to exceed $5,000,000 at any one time outstanding [it being understood that following the consummation of the Xxxxxxxxx.xxx Acquisition in accordance with Section 7.20 hereof, the survivor of the Xxxxxxxxx.xxx Acquisition shall be a Guarantor subject to clause (e) hereof]; provided however that any such loans and advances shall be evidenced by and funded under an Intercompany Note which Intercompany Note shall be pledged to the Agent for the benefit of the Banks pursuant to the Domestic Security Agreement;
(g) Intercompany Loans and Advances by the Company (directly or through a Guarantor, ) to the Canadian Permitted Borrower and their Subsidiaries, together with the in an aggregate amount not to exceed $5,000,000 at any one time outstanding; provided, however that if any such loans and advances shall be evidenced by and funded under an Intercompany Note such Intercompany Note shall be pledged to the Agent for the benefit of all Guarantee Obligations the Banks pursuant to the Domestic Security Agreement;
(h) Intercompany Loans and Advances by the Company (directly or through a Guarantor) to the Company's Foreign Subsidiaries in an aggregate amount not to exceed $5,000,000 at any one time outstanding; provided however that any such loans and advances shall be evidenced by and funded under an Intercompany Note such Intercompany Note shall be pledged to the Agent for the benefit of the Banks pursuant to the Domestic Pledge Agreement;
(i) Investments in respect of Hedging Transactions;
(j) Permitted Acquisitions permitted pursuant to subsection 14.3(j)(iii), Section 8.4; and.
(k) other investments in any Person in an amount not to exceed $2,000,000 at any one time outstanding, . In valuing any Investments for the purpose of applying the limitations set forth in this Section 8.8 (iii) relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity or except as otherwise specified in subsection 14.9 and (iv) existing on the Closing Date and described in Schedule 14.8(f);
(d) Investments by the Borrower in, and loans, advances and capital contributions by the Borrower to, any Wholly Owned Subsidiary and investments by Subsidiaries in, and loans, advances and capital contributions by Subsidiaries to, the Borrower and Wholly Owned Subsidiaries;
(e) the acquisition of all or substantially all of the business or assets or the Capital Stock of any Person or any business unit thereof or all or substantially all of the Capital Stock of any Person (a "Permitted --------- Acquisition"), expressly provided that: ----------- --------
(i) upon giving effect to such Permitted Acquisition on a pro forma basis, either (A) the Borrower would be in Historical Pro Forma Compliance with respect to such Permitted Acquisition, or (B) the Borrower would not be in Historical Pro Forma Compliance but would otherwise be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and the aggregate cash purchase price paid by the Borrower and its Subsidiaries for all Permitted Acquisitions made pursuant to this subclause (B) does not exceed an amount initially equal to $25,000,000, which amount shall be increased by $5,000,000 on each anniversary of the Closing Date, or (C) the Borrower would be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and such Permitted Acquisition is financed entirely through the issuance of equity (excluding any financing through the assumption of Indebtedness not for borrowed money in connection with the Acquisition);
(ii) no Default or Event of Default has occurred and is continuing at the time of consummation of such Permitted Acquisition or will result therefrom; and
(iii) any such acquisition of Capital Stock of any Person may exclude any Capital stock of such Person to the extent necessary in the good faith judgment of the Borrower, to permit such acquisition to be accounted for as a recapitalization;
(f) Investments existing on the Closing Date and described in Schedule 14.8(f), setting forth the respective amounts of such Investments as of a recent date;
(g) Investments in notes receivable and other instruments and securities obtained in connection with transactions permitted by subsection 14.5(d);
(h) Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business or otherwise described in subsection 14.2(c), (d) or (j);
(i) Investments representing non-cash consideration received by the Borrower or any of its Subsidiaries in connection with any sale or other disposition of the property of the Borrower or any of its Subsidiaries, provided that in the case of any sale or other disposition permitted under -------- subsection 14.5(jherein), such non-cash consideration constitutes not more than 25% of the aggregate consideration received in connection with such sale or other disposition and any such non-cash consideration received by the Borrower or any of its Domestic Subsidiaries is pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documents;
(j) Investments by the Borrower or any of its Subsidiaries in one or more Persons in connection with joint ventures or similar arrangements in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Borrower or such Subsidiary in an aggregate amount not to exceed $7,500,000 at any one time outstanding;
(k) Investments representing evidences of Indebtedness, securities or other property received from another Person by the Borrower or any of its Subsidiaries in connection with any bankruptcy proceeding or other reorganization of such other Person or as a result of foreclosure, perfection or enforcement of any Lien or exchange for evidences of Indebtedness, securities or other property of such other Person held by the Borrower or any of its Subsidiaries; provided that any such -------- securities or other property received by the Borrower or any of its Domestic Subsidiaries is pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documents;
(l) loans and advances to Management Investors in connection with the purchase by such Management Investors of Capital Stock of the Guarantor or the Borrower of up to $20,000,000 outstanding at any one time; provided -------- that such amount Investment shall be reduced by taken at the aggregate principal original cost thereof, without allowance for any subsequent write-offs or appreciation or depreciation, but less any amount repaid or recovered on account of Indebtedness in respect of Guarantee Obligations permitted by subsection 14.3(e);
(m) Investments in the Capital Stock of the Guarantor which is held by the Guarantor as treasury stock and is restored to unissued status capital or is eliminated from authorized shares, or options in respect thereof;
(n) Investments constituting Capital Expenditures, to the extent permitted by subsection 14.7;
(o) Investments of the Borrower and its Subsidiaries under any Hedging Arrangements; and
(p) Investments not otherwise permitted by the preceding clauses of subsection 14.8 in an aggregate amount not to exceed $15,000,000 at any one time outstandingprincipal.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any --------------------------------------------- advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting all or a material part of a business unit of, or make any other investment in, any Person (collectively, "Investments"), except in the case of Borrower and any Loan Party and subject to ----------- the limitations set forth in the subsections 8.8(X) and (Y) below:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in cash and Cash Equivalents;
(c) loans and advances to officers, directors or employees of the Guarantor, the Borrower or their Subsidiaries (i) for travel, entertainment and relocation expenses in the ordinary course of business, (ii) for other purposes in an aggregate amount for the Guarantor, the Borrower and their Subsidiaries, together with the aggregate amount of all Guarantee Guaranty Obligations expressly permitted pursuant to subsection 14.3(j)(iii), not to exceed $2,000,000 at any one time outstanding, (iii) relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity or as otherwise specified in subsection 14.9 and (iv) existing on the Closing Date and described in Schedule 14.8(f)by Section 8.2;
(d) Investments by the Borrower in, and loans, advances and capital contributions by the Borrower to, any Wholly Owned Subsidiary and investments by Subsidiaries in, and loans, advances and capital contributions by Subsidiaries to, the Borrower and Wholly Owned Subsidiaries;
(e) the acquisition of all or substantially all of the business or assets or the Capital Stock of any Person or any business unit thereof or all or substantially all of the Capital Stock of any Person (a "Permitted --------- Acquisition"), provided that: ----------- --------
(i) upon giving effect to such Permitted Acquisition on a pro forma basis, either (A) the Borrower would be in Historical Pro Forma Compliance with respect to such Permitted Acquisition, or (B) the Borrower would not be in Historical Pro Forma Compliance but would otherwise be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and the aggregate cash purchase price paid by the Borrower and its Subsidiaries for all Permitted Acquisitions made pursuant to this subclause (B) does not exceed an amount initially equal to $25,000,000, which amount shall be increased by $5,000,000 on each anniversary of the Closing Date, or (C) the Borrower would be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and such Permitted Acquisition is financed entirely through the issuance of equity (excluding any financing through the assumption of Indebtedness not for borrowed money in connection with the Acquisition);
(ii) no Default or Event of Default has occurred and is continuing at the time of consummation of such Permitted Acquisition or will result therefrom; and
(iii) any such acquisition of Capital Stock of any Person may exclude any Capital stock of such Person to the extent necessary in the good faith judgment of the Borrower, to permit such acquisition to be accounted for as a recapitalization;
(f) Investments existing on the Closing Date and described in Schedule 14.8(f), setting forth the respective amounts of such Investments as of a recent date;
(g) Investments in promissory notes receivable and other instruments and securities obtained in connection with transactions permitted by subsection 14.5(d);
(h) Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business or otherwise described in subsection 14.2(c), (d) or (j);
(i) Investments representing similar non-cash consideration received by the Borrower or and any of its Subsidiaries Loan Party in connection with any sale or other disposition of the property of the Borrower or any of its Subsidiaries, provided that in the case of any sale or other disposition Dispositions permitted under -------- subsection 14.5(j), such non-cash consideration constitutes not more than 25% of the aggregate consideration received in connection with such sale or other disposition and any such non-cash consideration received by the Borrower or any of its Domestic Subsidiaries is pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security DocumentsSection 8.5;
(je) Investments by the Borrower or any of its Subsidiaries Loan Party in one or more Persons in connection with joint ventures or similar arrangements in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Borrower or such Subsidiary in an aggregate amount not to exceed $7,500,000 at any one time outstanding;
(k) Investments representing evidences of Indebtedness, securities or other property received from another Person by the Borrower or any of its Subsidiaries in connection with any bankruptcy proceeding or other reorganization of Person that, prior to such other Person or as investment, is a result of foreclosure, perfection or enforcement of any Lien or exchange for evidences of Indebtedness, securities or other property of such other Person held by the Borrower or any of its Subsidiaries; provided that any such -------- securities or other property received by the Borrower or any of its Domestic Subsidiaries is pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security DocumentsLoan Party;
(lf) loans and advances to Management Investors in connection with the purchase employees and/or agents to meet expenses incurred by such Management Investors of Capital Stock employees and/or agents in the ordinary course of the Guarantor or the Borrower of up to $20,000,000 outstanding at any one time; provided -------- that such amount shall be reduced by the aggregate principal amount of Indebtedness in respect of Guarantee Obligations permitted by subsection 14.3(e)Business;
(mg) Investments loans and advances in the Capital Stock ordinary course of the Guarantor which is held by the Guarantor as treasury stock and is restored business to unissued status vendors or is eliminated from authorized shares, or options in respect thereof;
(n) Investments constituting Capital Expenditures, to the extent permitted by subsection 14.7;
(o) Investments suppliers of the Borrower and its Subsidiaries any Loan Party in the ordinary course of Business or relating to relocation expenses;
(h) Investments existing on the date hereof and described on Schedule 8.8(h) hereto;
(i) Investments consisting of Permitted Acquisitions;
(j) loans or other advances under any Hedging Arrangementsthe Commission Advance Program to, or on account of errors and omissions insurance premium payments for, employees and/or agents; and
(pk) Restricted Investments not otherwise permitted by Section 8.9 hereof; provided, -------- however, that the preceding clauses of subsection 14.8 in an aggregate amount of all Investments made pursuant to this ------- Section 8.8(k) shall not exceed at the time such Investments are made the sum of: (X) the lesser of (a) $10,000,000 and (b) $5,000,000 plus the Excess Cash Flow Add Back plus (Y) the lesser of (a) $5,000,000 and (b) ---- $10,000,000 less the amount of any stock repurchases made pursuant to Section 8.6(iii); provided that the sum of (i) the aggregate amount of Investments made pursuant -------- to subsections 8.8(f), (g) and (j) above plus (ii) the aggregate amount of ---- Guaranties made pursuant to Section 8.7, shall not exceed $15,000,000 at any one time outstanding5,000,000.
Appears in 1 contract
Samples: Credit Agreement (Grubb & Ellis Co)
Limitation on Investments, Loans and Advances. The Borrower shall not, and shall not permit any of its Subsidiaries to, purchase, hold or acquire beneficially any stock, other securities or evidences of Indebtedness of, make or permit to exist any loans or advances to, or make or permit to exist any investment or acquire any interest whatsoever in, any other Person, except:
(a) extensions of trade credit to customers in the ordinary course of business;
(b) Investments in cash and Cash EquivalentsPermitted Investments;
(c) loans and advances to officers, directors or employees of the Guarantor, the Borrower or their its Subsidiaries (iother than NUI Utilities) for travel, entertainment and relocation expenses in the ordinary course of business, (ii) for other purposes in an aggregate amount for the Guarantor, the Borrower and their Subsidiaries, together with the aggregate amount of all Guarantee Obligations permitted pursuant to subsection 14.3(j)(iii), not to exceed $2,000,000 at any one time outstanding, (iii) relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity or as otherwise specified in subsection 14.9 and (iv) existing on the Closing Date and described in Schedule 14.8(f);
(d) Investments by the Borrower in, and loans, advances and capital contributions by the Borrower to, existing equity interests in any Wholly Owned Subsidiary and investments by Subsidiaries in, and loans, advances and capital contributions by Subsidiaries to, the Borrower and Wholly Owned SubsidiariesSubsidiary;
(e) loans and advances by the acquisition of all or substantially all of the business or assets or the Capital Stock of any Person or any business unit thereof or all or substantially all of the Capital Stock of any Person (a "Permitted --------- Acquisition"), provided that: ----------- --------
Borrower to (i) upon giving effect to such Permitted Acquisition on a pro forma basisany Guarantor, either (A) the Borrower would be in Historical Pro Forma Compliance with respect to such Permitted Acquisition, or (B) the Borrower would not be in Historical Pro Forma Compliance but would otherwise be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and the aggregate cash purchase price paid by the Borrower and its Subsidiaries for all Permitted Acquisitions made pursuant to this subclause (B) does not exceed an amount initially equal to $25,000,000, which amount shall be increased by $5,000,000 on each anniversary of the Closing Date, or (C) the Borrower would be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and such Permitted Acquisition is financed entirely through the issuance of equity (excluding any financing through the assumption of Indebtedness not for borrowed money in connection with the Acquisition);
(ii) no Default Virginia Gas Company or Event any of Default has occurred and is continuing at its Subsidiaries to the time of consummation of such Permitted Acquisition extent permitted by Section 5.13(i) hereof, or will result therefrom; and
(iii) any such acquisition of Capital Stock of any Person may exclude any Capital stock of such Person Restricted Subsidiary to the extent necessary in the good faith judgment of the Borrower, to permit such acquisition to be accounted for as a recapitalizationpermitted by Section 5.13(j) hereof;
(f) Investments existing on the Closing Date and described in Schedule 14.8(f), setting forth the respective amounts of such Investments as of a recent datePermitted Acquisitions;
(g) Investments in notes receivable and other instruments and securities obtained acquired in connection with transactions permitted by subsection 14.5(d);
(h) Investments in the nature bankruptcy of pledges any supplier or deposits with respect to leases or utilities provided to third parties customer in the ordinary course of business and consistent with past practices or otherwise described in subsection 14.2(c), connection with the settlement of delinquent accounts of any such supplier or customer;
(dh) loans and advances by any Guarantor to the Borrower or (j);to any other Guarantor; and
(i) Investments representing non-cash consideration received (I)(A) the transfer of the Compressor by the Borrower or any of its Subsidiaries in connection with any sale or other disposition of to the property of Saltville Member and by the Borrower or any of its Subsidiaries, provided that Saltville Member to the Saltville JV as contemplated by Section 5.5 in the case Fiscal Year ended September 30, 2003, or (B) in lieu of any sale such transfer, the equity contribution, loans or other disposition permitted under -------- subsection 14.5(j), such non-cash consideration constitutes advances of an aggregate amount not more than 25% of the aggregate consideration received in connection with such sale or other disposition and any such non-cash consideration received to exceed $20,000,000 by the Borrower or any of its Domestic Subsidiaries is pledged to the Administrative Agent for Saltville Member and by the benefit of the Lenders pursuant Saltville Member to the Security Documents;
Saltville JV in the Fiscal Year ended September 30, 2003, and (jII) Investments the equity contribution, loans or advances by the Borrower or any of its Subsidiaries in one or more Persons in connection with joint ventures or similar arrangements in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than to the Borrower or such Subsidiary Saltville Member and by the Saltville Member to the Saltville JV in an aggregate amount not to exceed $7,500,000 at 10,000,000 in the Fiscal Year ending September 30, 2004; provided that both before and after giving effect to any one time outstanding;such transfer, loan or advance under this Section 5.16(i), no Potential Default or Event of Default shall have occurred and be continuing; and
(kj) Investments representing evidences of Indebtedness, securities or other property received from another Person by the Borrower or any of its Subsidiaries acquired in connection with any bankruptcy proceeding or other reorganization of such other Person or as a result of foreclosure, perfection or enforcement of any Lien or exchange for evidences of Indebtedness, securities or other property of such other Person held by the Borrower or any of its Subsidiaries; provided that any such -------- securities or other property received by the Borrower or any of its Domestic Subsidiaries is pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documents;
(l) loans and advances to Management Investors in connection with the purchase by such Management Investors of Capital Stock of the Guarantor or the Borrower of up to $20,000,000 outstanding at any one time; provided -------- that such amount shall be reduced by the aggregate principal amount of Indebtedness in respect of Guarantee Obligations permitted by subsection 14.3(e);
(m) Investments in the Capital Stock of the Guarantor which is held by the Guarantor as treasury stock and is restored to unissued status or is eliminated from authorized shares, or options in respect thereof;
(n) Investments constituting Capital Expenditures, asset sales to the extent permitted by subsection 14.7;
(o) Investments of the Borrower and its Subsidiaries under any Hedging Arrangements; and
(p) Investments not otherwise permitted by the preceding clauses of subsection 14.8 in an aggregate amount not to exceed $15,000,000 at any one time outstandingSection 5.5.
Appears in 1 contract
Samples: Credit Agreement (Nui Corp /Nj/)
Limitation on Investments, Loans and Advances. Make or permit to remain outstanding any loans, or advances to, or investments in (collectively, “Investments”), (whether such investment shall be of the character of investment in shares of stock, evidences of indebtedness or other securities or otherwise), or any loans or advances to, any Person, other than:
(a) Investments in cash and Cash Equivalents;
(b) Investments existing on the Effective Date and listed on Schedule 8.6;
(c) Investments (i) made by Borrower in any Restricted Subsidiary, any Unrestricted Subsidiary or Parent, or (ii) made by any Restricted Subsidiary in Borrower, any other Restricted Subsidiary, any Unrestricted Subsidiary or Parent;
(d) Investments in respect of Commodity Hedging Agreements and Interest Rate Agreements permitted by Section 8.1(d)8.11;
(e) advances to employees of Parent and its Subsidiaries for travel, meals and entertainment expenses in the ordinary course of business and loans to employees for the purpose of exercise of stock options, all of which in the aggregate outstanding at any time shall not exceed 2% of the amount of the Borrowing Base; MRC Energy Company Credit Agreement 104
(f) the creation or acquisitionAcquisition of additional Restricted Subsidiaries made in compliance with Section 7.12;
(g) demand deposits with financial institutions, prepaid expenses and extensions of trade credit in the ordinary course of business (and any Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss);
(h) guarantee obligations permitted by Section 8.1;
(i) Investments by Borrower and its Restricted Subsidiaries that are (i) customary in the oil and gas business, and (ii) made in the form of, or pursuant to, Oil and Gas Properties, operating agreements, farm-in agreements, farm-out agreements, mutual interest agreements, development agreements, unitization agreements, joint bidding agreements, joint venture agreements, services contracts and other similar agreements;
(j) the acquisition of Oil and Gas Properties, equipment and other property, and investments with respect to and relating to the production of oil, gas and other liquid or gaseous Hydrocarbons from Oil and Gas Properties;
(k) the entry into operating agreements, working interests, royalty interests, mineral leases, processing agreements, farm-out agreements, contracts for the sale, transportation or exchange of oil and natural gas, unitization agreements, pooling arrangements, area of mutual interest agreements, production sharing agreements or other similar or customary agreements, transactions, properties, interests or arrangements, and investments and expenditures in connection therewith or pursuant thereto in the ordinary course of business;
(l) Investments representing the non-cash portion of the consideration received for any Disposition of any assets permitted under Section 8.4;
(m) Investments (including, without limitation, capital contributions) in general or limited partnerships or other types of entities or joint ventures entered into by Borrower or a Restricted Subsidiary;
(n) extensions of trade credit in the ordinary course of business;; and
(bo) in addition to Investments in cash and Cash Equivalents;
(c) loans and advances to officersotherwise expressly permitted by this Section, directors or employees of the Guarantor, the Investments by Borrower or their Subsidiaries (i) for travel, entertainment and relocation expenses in the ordinary course any of business, (ii) for other purposes in an aggregate amount for the Guarantor, the Borrower and their its Restricted Subsidiaries, together with the aggregate amount of all Guarantee Obligations permitted pursuant to subsection 14.3(j)(iii), not to exceed $2,000,000 at any one time outstanding, (iii) relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity or as otherwise specified in subsection 14.9 and (iv) existing on the Closing Date and described in Schedule 14.8(f);
(d) Investments by the Borrower in, and loans, advances and capital contributions by the Borrower to, any Wholly Owned Subsidiary and investments by Subsidiaries in, and loans, advances and capital contributions by Subsidiaries to, the Borrower and Wholly Owned Subsidiaries;
(e) the acquisition of all or substantially all of the business or assets or the Capital Stock of any Person or any business unit thereof or all or substantially all of the Capital Stock of any Person (a "Permitted --------- Acquisition"), provided that: ----------- --------that either:
(i) upon giving effect to such Permitted Acquisition on a pro forma basis, either (A) the Borrower would be in Historical Pro Forma Compliance with respect to such Permitted Acquisition, or (B) the Borrower would not be in Historical Pro Forma Compliance but would otherwise be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and the aggregate cash purchase price paid by the Borrower and its Subsidiaries for all Permitted Acquisitions made pursuant to this subclause (B) does not exceed an amount initially equal to $25,000,000, which amount shall be increased by $5,000,000 on each anniversary of the Closing Date, or (C) the Borrower would be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and such Permitted Acquisition is financed entirely through the issuance of equity (excluding any financing through the assumption of Indebtedness not for borrowed money in connection with the Acquisition);
(iix) no Default or Event of Default has occurred and is continuing at the time of consummation making such Investment or would result from the making of such Permitted Acquisition or will result therefrom; and
Investment and (iiiy) any such acquisition of Capital Stock of any Person may exclude any Capital stock of such Person to the extent necessary in the good faith judgment of the Borrower, to permit such acquisition to be accounted for as a recapitalization;
(f) Investments existing on the Closing Date and described in Schedule 14.8(f), setting forth the respective amounts aggregate amount of such Investments as shall not exceed $25,000,000 during any Fiscal Year of a recent date;Borrower, or
(gii) Investments in notes receivable and other instruments and securities obtained in connection the Specified Conditions shall have been satisfied. MRC Energy Company Credit Agreement 105 For purposes of determining compliance with transactions permitted by subsection 14.5(d);
(h) Investments this Section 8.6, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the nature value of pledges or deposits such Investment, but with respect adjustment for amounts actually returned in cash to leases or utilities provided to third parties in the ordinary course of business or otherwise described in subsection 14.2(c), (d) or (j);
(i) Investments representing non-cash consideration received by the Borrower or any of its Subsidiaries in connection with any sale or other disposition of the property of the Borrower or any of its Subsidiaries, provided that in the case of any sale or other disposition permitted under -------- subsection 14.5(j), applicable Restricted Subsidiary on such non-cash consideration constitutes not more than 25% of the aggregate consideration received in connection with such sale or other disposition and any such non-cash consideration received by the Borrower or any of its Domestic Subsidiaries is pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documents;
(j) Investments by the Borrower or any of its Subsidiaries in one or more Persons in connection with joint ventures or similar arrangements in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Borrower or such Subsidiary in an aggregate amount not to exceed $7,500,000 at any one time outstanding;
(k) Investments representing evidences of Indebtedness, securities or other property received from another Person by the Borrower or any of its Subsidiaries in connection with any bankruptcy proceeding or other reorganization of such other Person or as a result of foreclosure, perfection or enforcement of any Lien or exchange for evidences of Indebtedness, securities or other property of such other Person held by the Borrower or any of its Subsidiaries; provided that any such -------- securities or other property received by the Borrower or any of its Domestic Subsidiaries is pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documents;
(l) loans and advances to Management Investors in connection with the purchase by such Management Investors of Capital Stock of the Guarantor or the Borrower of up to $20,000,000 outstanding at any one time; provided -------- that such amount shall be reduced by the aggregate principal amount of Indebtedness in respect of Guarantee Obligations permitted by subsection 14.3(e);
(m) Investments in the Capital Stock of the Guarantor which is held by the Guarantor as treasury stock and is restored to unissued status or is eliminated from authorized shares, or options in respect thereof;
(n) Investments constituting Capital Expenditures, to the extent permitted by subsection 14.7;
(o) Investments of the Borrower and its Subsidiaries under any Hedging Arrangements; and
(p) Investments not otherwise permitted by the preceding clauses of subsection 14.8 in an aggregate amount not to exceed $15,000,000 at any one time outstandingInvestment.
Appears in 1 contract
Limitation on Investments, Loans and Advances. Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (each an "Investment"), any other Person, except:
(a) extensions Extensions of trade credit in the ordinary course of business;
(b) Investments in cash and Cash Equivalents;
(c) loans and advances to officers, directors or employees of the Guarantor, the Borrower or their Subsidiaries (i) for travel, entertainment and relocation expenses in the ordinary course of business, (ii) for other purposes in an aggregate amount for the Guarantor, the Borrower and their Subsidiaries, together with the aggregate amount of all Guarantee Obligations permitted pursuant to subsection 14.3(j)(iii), not to exceed $2,000,000 at any one time outstanding, (iii) relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity or as otherwise specified in subsection 14.9 and (iv) Investments existing on the Closing Date date hereof and described in Schedule 14.8(f);
(d) Investments by the Borrower in, and loans, advances and capital contributions by the Borrower to, any Wholly Owned Subsidiary and investments by Subsidiaries in, and loans, advances and capital contributions by Subsidiaries to, the Borrower and Wholly Owned Subsidiaries;
(e) the acquisition of all or substantially all of the business or assets or the Capital Stock of any Person or any business unit thereof or all or substantially all of the Capital Stock of any Person (a "Permitted --------- Acquisition"), provided that: ----------- --------
(i) upon giving effect to such Permitted Acquisition on a pro forma basis, either (A) the Borrower would be in Historical Pro Forma Compliance with respect to such Permitted Acquisition, or (B) the Borrower would not be in Historical Pro Forma Compliance but would otherwise be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and the aggregate cash purchase price paid by the Borrower and its Subsidiaries for all Permitted Acquisitions made pursuant to this subclause (B) does not exceed an amount initially equal to $25,000,000, which amount shall be increased by $5,000,000 on each anniversary of the Closing Date, or (C) the Borrower would be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and such Permitted Acquisition is financed entirely through the issuance of equity (excluding any financing through the assumption of Indebtedness not for borrowed money in connection with the Acquisition);
(ii) no Default or Event of Default has occurred and is continuing at the time of consummation of such Permitted Acquisition or will result therefrom; and
(iii) any such acquisition of Capital Stock of any Person may exclude any Capital stock of such Person to the extent necessary in the good faith judgment of the Borrower, to permit such acquisition to be accounted for as a recapitalization;
(f) Investments existing on the Closing Date and described in Schedule 14.8(f8.9(c), setting forth the respective amounts of such Investments as of a recent date;
(gd) Investments in notes receivable and all the business or assets of, or stock or other instruments and securities obtained in connection with transactions evidences of beneficial ownership of, any Person to the extent permitted by subsection 14.5(d)8.10;
(he) Investments in the nature Borrower or any wholly owned Domestic Subsidiary of pledges or deposits with respect to leases or utilities provided to third parties the Borrower;
(f) customary travel and entertainment advances and relocation loans in the ordinary course of business to officers and employees of the Borrower or otherwise described in any such Subsidiary which, together with advances and loans made pursuant to subsection 14.2(c8.4(g), shall not exceed (das to the Borrower and all Subsidiaries) $1,000,000 at anytime outstanding;
(g) payroll advances in the ordinary course of business;
(h) the acquisition and holding of receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (jprovided that nothing in this clause (h) shall prevent the Borrower or any Subsidiary from offering such concessionary trade terms in the ordinary course of business, or from receiving such investments in connection with the bankruptcy or reorganization of their respective suppliers or customers or the settlement of disputes with such customers or suppliers arising in the ordinary course of business as management deems reasonable in the circumstances);
(i) extensions of credit representing the purchase price for the sale of assets permitted under subsection 8.6;
(j) Capital Expenditures permitted under subsection 8.8;
(k) Investments representing non-consisting of any repurchase or redemption of the Subordinated Notes, the New Notes or other Indebtedness that is financed solely by (i) loans or equity contributions made in cash consideration received to RBX Group (and then contributed as equity to the Borrower) by AIP, any Permitted AIP Affiliate or any officer, director or employee of RBX Group or any of its Subsidiaries or (ii) any proceeds from the sale or issuance after the Closing Date of the Capital Stock of RBX Group, the Borrower or any of its the Subsidiaries; and
(l) other Investments not otherwise permitted by clauses (a) through (k) above (including Investments in Foreign Subsidiaries in connection with any sale or other disposition of the property of the Borrower or any of its Subsidiaries, provided that in the case of any sale or other disposition permitted under -------- subsection 14.5(j), such non-cash consideration constitutes not more than 25% of the aggregate consideration received in connection with such sale or other disposition and any such non-cash consideration received by the Borrower or any of its Domestic Subsidiaries is pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documents;
(jBorrower) Investments by the Borrower or any of its Subsidiaries in one or more Persons in connection with joint ventures or similar arrangements in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Borrower or such Subsidiary in an aggregate amount not to exceed $7,500,000 at any one time outstanding;
(k) Investments representing evidences of Indebtedness, securities or other property received from another Person by the Borrower or any of its Subsidiaries in connection with any bankruptcy proceeding or other reorganization of such other Person or as a result of foreclosure, perfection or enforcement of any Lien or exchange for evidences of Indebtedness, securities or other property of such other Person held by the Borrower or any of its Subsidiaries; provided that any such -------- securities or other property received by the Borrower or any of its Domestic Subsidiaries is pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documents;
(l) loans and advances to Management Investors in connection with the purchase by such Management Investors of Capital Stock of the Guarantor or the Borrower of up to $20,000,000 outstanding at any one time; provided -------- that such amount shall be reduced by the aggregate principal amount of Indebtedness in respect of Guarantee Obligations permitted by subsection 14.3(e);
(m) Investments in the Capital Stock of the Guarantor which is held by the Guarantor as treasury stock and is restored to unissued status or is eliminated from authorized shares, or options in respect thereof;
(n) Investments constituting Capital Expenditures, to the extent permitted by subsection 14.7;
(o) Investments of the Borrower and its Subsidiaries under any Hedging Arrangements; and
(p) Investments not otherwise permitted by the preceding clauses of subsection 14.8 in an aggregate amount not to exceed $15,000,000 at any one time outstanding5,000,000.
Appears in 1 contract
Samples: Credit Agreement (RBX Corp)
Limitation on Investments, Loans and Advances. Make any -------------------------------------------------- advance, loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting all or a material part of a business unit of, or make any other investment in, any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments investments in cash and Cash Equivalents;
(c) Guarantee Obligations permitted by Section 8.2;
(d) loans and advances to officers, directors or employees of the GuarantorCompany or its Subsidiaries in the ordinary course of business (including, the Borrower or their Subsidiaries (i) without limitation, for travel, entertainment and relocation expenses in the ordinary course of business, (iiexpenses) for other purposes in an aggregate amount for the Guarantor, the Borrower Company and their Subsidiaries, together with the aggregate amount of all Guarantee Obligations permitted pursuant to subsection 14.3(j)(iii), its Subsidiaries not to exceed $2,000,000 5,000,000 at any one time outstanding, (iii) relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity or as otherwise specified in subsection 14.9 and (iv) existing on the Closing Date and described in Schedule 14.8(f);
(d) Investments by the Borrower in, and loans, advances and capital contributions by the Borrower to, any Wholly Owned Subsidiary and investments by Subsidiaries in, and loans, advances and capital contributions by Subsidiaries to, the Borrower and Wholly Owned Subsidiaries;
(e) the acquisition of all or substantially all of the business or assets or the Capital Stock of any Person Company or any business unit thereof or all or substantially all of the Capital Stock of any Person (a "Permitted --------- Acquisition"), provided that: ----------- --------
its Subsidiaries may make intercompany loans to (i) upon giving effect any Wholly Owned Subsidiary so long as each such intercompany loan of the Dollar Equivalent of $1,000,000 or more in principal amount is evidenced by a promissory note (in form and substance satisfactory to the Administrative Agent) which to the extent otherwise required under Section 7.10 is pledged in favor of the Administrative Agent pursuant to the Collateral Agreement or a Pledge Agreement and (ii) any Subsidiary which is not a Wholly Owned Subsidiary; provided, that the aggregate principal amount of all such Permitted Acquisition loans described in -------- this clause (ii) shall not exceed $10,000,000 at any one time outstanding;
(f) investments existing on a pro forma basis, either the Restatement Effective Date and set forth on Schedule 8.8(j);
(Ag) investments in connection with (i) the Borrower would be Interest Rate Protection Agreements described in Historical Pro Forma Compliance with respect Section 7.9 and other non-speculative Interest Rate Protection Agreements, (ii) non-speculative Hedge Agreements relating to such raw materials reasonably related to the production needs of the Company and its Subsidiaries and (iii) non-speculative Hedge Agreements relating to currencies;
(h) Permitted Acquisition, or Acquisitions; provided that (Bi) the Borrower would not be in Historical Pro Forma Compliance but would otherwise be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and the aggregate cash purchase price -------- Purchase Prices paid by the Borrower Company and its Subsidiaries for on account of all Permitted Acquisitions made pursuant to as of any time during the term of this subclause (B) does Agreement, other than the acquisitions described on Schedule 1.1E, and net of Designated Disposition Proceeds, shall not exceed an amount initially equal to $25,000,000, which amount shall be increased by $5,000,000 on each anniversary of the Closing Date, or (C) the Borrower would be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical PeriodMaximum Amount at such time, and such Permitted Acquisition is financed entirely through the issuance of equity (excluding any financing through the assumption of Indebtedness not for borrowed money in connection with the Acquisition);
(ii) no Default or Event of Default has shall have occurred and is be continuing at immediately prior to or after the time of consummation of such Permitted Acquisition or will result therefrom; and
Acquisition, (iii) any Person which becomes a Subsidiary of the Company by virtue of any such acquisition shall comply with the provisions of Capital Stock of Section 7.10(c), (iv) prior to consummating any Person may exclude any Capital stock of Permitted Acquisition the Lenders shall have received evidence reasonably satisfactory to them demonstrating pro forma compliance by the Company with Section 8.1 both before and after giving effect to such Person Permitted Acquisition and (v) the Company shall have provided to the extent necessary in Agents and the good faith judgment of the Borrower, to permit such acquisition to be accounted for as Lenders a recapitalization;
(f) Investments existing on the Closing Date and described in Schedule 14.8(f), setting forth the respective amounts of such Investments as of a recent date;
(g) Investments in notes receivable and other instruments and securities obtained in connection with transactions permitted by subsection 14.5(d);
(h) Investments in the nature of pledges or deposits Permitted Acquisition Notice with respect to leases or utilities provided such Permitted Acquisition at least 30 days' prior to third parties in the ordinary course of business or otherwise described in subsection 14.2(c), (d) or (j)consummation thereof;
(i) Investments representing non-cash consideration received by the Borrower or any GNB Acquisition, including the creation and capitalization of its Subsidiaries in connection with any sale or other disposition of the property of the Borrower or any of its Subsidiaries, provided that in the case of any sale or other disposition permitted under -------- subsection 14.5(j), such non-cash consideration constitutes not more than 25% of the aggregate consideration received in connection with such sale or other disposition and any such non-cash consideration received by the Borrower or any of its Domestic Subsidiaries is pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documents;therewith; and
(j) Investments by (x) the Borrower or any contribution to a Permitted Joint Venture of its Subsidiaries the Contributed Asset and (y) other investments in one or more Persons in connection with joint ventures or similar arrangements in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Borrower or such Subsidiary Permitted Joint Ventures in an aggregate amount not to exceed $7,500,000 thereof at any one time outstanding;
not to exceed for all investments made pursuant to this clause (ky) Investments representing evidences the sum of Indebtedness, securities or other property received from another Person by (A) $50,000,000 and (B) the Borrower or any of its Subsidiaries in connection with any bankruptcy proceeding or other reorganization of such other Person or as a result of foreclosure, perfection or enforcement amount of any Lien or exchange for evidences of Indebtedness, securities or other property of such other Person held by the Borrower or any of its Subsidiaries; provided that any such -------- securities or other property received by the Borrower or any of its Domestic Subsidiaries is pledged to the Administrative Agent for the benefit of the Lenders pursuant to the Security Documents;
(l) loans and advances to Management Investors in connection investments financed with the purchase by such Management Investors of Capital Stock of the Guarantor or the Borrower of up to $20,000,000 outstanding at any one time; provided -------- that such amount shall be reduced by the aggregate principal amount of Indebtedness in respect of Guarantee Obligations permitted by subsection 14.3(e);
(m) Investments in the Capital Stock of the Guarantor which is held by the Guarantor as treasury stock and is restored to unissued status or is eliminated from authorized shares, or options in respect thereof;
(n) Investments constituting Capital Expenditures, Designated Equity Amounts to the extent permitted by subsection 14.7;
(o) Investments of the Borrower and its Subsidiaries under any Hedging Arrangements; and
(p) Investments such Designated Equity Amounts do not otherwise permitted by the preceding clauses of subsection 14.8 in an aggregate amount not to exceed $15,000,000 at any one time outstanding25,000,000.
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 or Capital Stock of, or any assets constituting a business unit of, or make any other investment in, any Person, except:
(a) Permitted Investments;
(b) extensions of trade credit in the ordinary course of business;
(b) Investments in cash and Cash Equivalents;
(c) loans and advances to officers, directors or officers and employees of the Guarantor, the Borrower or their Subsidiaries (i) for travel, entertainment and relocation expenses in the ordinary course of business, (ii) for other purposes in an aggregate amount for the Guarantor, the Borrower and their Subsidiaries, together with the aggregate amount of all Guarantee Obligations permitted pursuant to subsection 14.3(j)(iii), not to exceed $2,000,000 at any one time outstanding, (iii) relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in any such capacity or as otherwise specified in subsection 14.9 and (iv) existing on the Closing Date and described in Schedule 14.8(f);
(d) Investments by the Borrower in, and loans, advances and capital contributions by the Borrower to, any Wholly Owned Subsidiary and investments by Subsidiaries in, and loans, advances and capital contributions by Subsidiaries to, the Borrower and Wholly Owned Subsidiaries;
(e) the acquisition of all or substantially all of the business or assets or the Capital Stock of any Person Company or any business unit thereof or all or substantially all of the Capital Stock of any Person (a "Permitted --------- Acquisition"), provided that: ----------- --------
(i) upon giving effect to such Permitted Acquisition on a pro forma basis, either (A) the Borrower would be in Historical Pro Forma Compliance with respect to such Permitted Acquisition, or (B) the Borrower would not be in Historical Pro Forma Compliance but would otherwise be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and the aggregate cash purchase price paid by the Borrower and its Subsidiaries for all Permitted Acquisitions made pursuant to this subclause (B) does not exceed an amount initially equal to $25,000,000, which amount shall be increased by $5,000,000 on each anniversary of the Closing Date, or (C) the Borrower would be in compliance on a pro forma basis with each of the financial covenants contained in Section 13 as if such Permitted Acquisition had been made on the first day of the Historical Period, and such Permitted Acquisition is financed entirely through the issuance of equity (excluding any financing through the assumption of Indebtedness not for borrowed money in connection with the Acquisition);
(ii) no Default or Event of Default has occurred and is continuing at the time of consummation of such Permitted Acquisition or will result therefrom; and
(iii) any such acquisition of Capital Stock of any Person may exclude any Capital stock of such Person to the extent necessary in the good faith judgment of the Borrower, to permit such acquisition to be accounted for as a recapitalization;
(f) Investments existing on the Closing Date and described in Schedule 14.8(f), setting forth the respective amounts of such Investments as of a recent date;
(g) Investments in notes receivable and other instruments and securities obtained in connection with transactions permitted by subsection 14.5(d);
(h) Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties Subsidiary in the ordinary course of business or otherwise described to purchase Capital Stock of the Company in subsection 14.2(c), an aggregate amount not to exceed $250,000 at any one time outstanding;
(d) or Acquisitions permitted by Section 9.4 (jincluding the formation of transitory Subsidiaries for use in connection with Permitted Acquisitions);
(ie) Investments representing non-cash consideration received loans by the Borrower or any of its Subsidiaries Company to FLD Acquisition Corp. required to consummate the Full Line Acquisition and the Full Line Merger in connection accordance with any sale or other disposition of the property of the Borrower or any of its Subsidiariesterms hereof, provided that such loans shall be evidenced by a promissory note in form and substance acceptable to the case of any sale or other disposition permitted under -------- subsection 14.5(j), such non-cash consideration constitutes not more than 25% of the aggregate consideration received in connection with such sale or other disposition Agent and any such non-cash consideration received by the Borrower or any of its Domestic Subsidiaries is pledged to the Administrative Agent for the benefit of the Lenders pursuant to the a Security DocumentsAgreement;
(jf) Investments prior to Full Line becoming a Guarantor, loans by the Borrower or Company to Full Line required to pay off any Debt of its Subsidiaries in one or more Persons in connection with joint ventures or similar arrangements in respect of which no other co-investor or other Person has a greater legal or beneficial ownership interest than the Borrower or such Subsidiary Full Line in an aggregate amount not to exceed $7,500,000 at any one time outstanding;
16,000,000, provided that (ki) Investments representing evidences of Indebtedness, securities or other property received from another Person such loans shall be evidenced by the Borrower or any of its Subsidiaries Broder-Full Line Secured Loan Documents in connection with any bankruptcy proceeding or other reorganization of such other Person or as a result of foreclosure, perfection or enforcement of any Lien or exchange for evidences of Indebtedness, securities or other property of such other Person held by form and substance acceptable to the Borrower or any of its Subsidiaries; provided that any such -------- securities or other property received by the Borrower or any of its Domestic Subsidiaries is Agent and pledged to the Administrative Agent for the benefit of the Lenders pursuant to a Security Agreement, (ii) the Security DocumentsCompany shall not amend, modify or terminate any of the Broder-Full Line Secured Loan Documents without the prior consent of the Agent and (iii) such loans shall be fully secured by all assets of Full Line and assigned to the Agent and shall be on terms and conditions satisfactory to the Agent;
(lg) loans loans, advances and advances extensions of credit between the Company and Guarantors and between Guarantors;
(h) investments (i) in accounts receivable arising and trade credit granted in the ordinary course of business and in any securities or other investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and (ii) prepayments and other credits to Management Investors suppliers or landlords made in the ordinary course of business consistent with the past practices of Company and its Subsidiaries;
(i) investments in Interest Rate Protection Agreements permitted by the terms of this Agreement;
(j) investments in notes received in connection with the purchase by such Management Investors of Capital Stock of the Guarantor or the Borrower of up to $20,000,000 outstanding at any one time; asset sale permitted hereunder, provided -------- that such amount shall be reduced by the aggregate principal amount of Indebtedness all such notes at any time outstanding shall not comprise more than 40% of the consideration received in respect of Guarantee Obligations permitted by subsection 14.3(e)connection with such asset sale and all such notes shall be pledged to the Agent;
(mk) Investments nominal investments in the Capital Stock wholly owned Subsidiaries which are not Guarantors required to form such Subsidiaries, provided that such Subsidiaries shall promptly, and in any event within ten Business Days of the Guarantor which is held by the Guarantor as treasury stock and is restored to unissued status or is eliminated from authorized sharesformation of such Subsidiary, or options in respect thereof;
(n) Investments constituting Capital Expenditures, to the extent permitted by subsection 14.7;
(o) Investments of the Borrower and its Subsidiaries under any Hedging Arrangementsbecome a Guarantor; and
(pi) Investments not otherwise permitted by other loans, advances and extensions of credit in the preceding clauses ordinary course of subsection 14.8 business in an aggregate unpaid principal amount not to exceed $15,000,000 250,000 in aggregate, at any one time outstandingtime. In valuing any Investments for the purpose of applying the limitations set forth in this Section 9.8 (except as otherwise expressly provided herein), such Investment shall be taken at the original cost thereof, without allowance for any subsequent write-offs or appreciation or depreciation, but less any amount repaid or recovered on account of capital or principal.
Appears in 1 contract
