Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries to make any Investment except: (a) extensions of trade credit and asset purchases in the ordinary course of business; (b) Investments that were Permitted Investments when such Investments were made; (c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000; (d) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date; (e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment; (f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings; (g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties; (h) Investments constituting Permitted Acquisitions; (i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time; (j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4; (k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof); (l) Investments consisting of dividends permitted under Section 10.6; (m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6; (n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business; (o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices; (p) advances of payroll payments to employees in the ordinary course of business; (q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business; (r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation; (s) Investments in Hedge Agreements permitted by Section 10.1; (t) Investments arising out of or in connection with any Permitted Receivables Financing; (u) Investments in the ordinary course of business in connection with Settlements; (v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time; (w) Investments in connection with any transaction permitted by Section 10.3; and (x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business; (y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and (z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.
Appears in 13 contracts
Samples: Credit Agreement (First Data Corp), Joinder Agreement (First Data Corp), Joinder Agreement (First Data Corp)
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries to make any Investment except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were made;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Original Closing Date as set forth on Schedule 10.5 to the Original Credit Agreement and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant set forth on Schedule 10.5 to legally binding written commitments in existence on, the 2014 July Repricing Effective DateOriginal Credit Agreement;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Original Closing Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000750,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 750,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time);
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 600,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such timeAmount;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.
Appears in 8 contracts
Samples: Credit Agreement (First Data Corp), Credit Agreement (First Data Corp), Credit Agreement (First Data Corp)
Limitation on Investments. The Borrower and the Parent Guarantors will not, and will not permit any of the Restricted Subsidiaries to to, make any advance, loan, extensions of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets of, or make any other Investment in, any Person, except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madeInvestments;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries in an aggregate principal amount at any time outstanding under this clause (ic) for reasonable and customary business(determined without regard to any write-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock downs or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount write-offs of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iiiadvances) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed exceeding $10,000,00030,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Date date hereof and listed on Schedule 10.5 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of any Investment made all Investments pursuant to this clause (d) is not increased at any time above the amount of such Investment Investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Datedate hereof;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investmentbusiness;
(f) Investments to the extent that payment for such Investments is made solely with Capital Stock of Holdings or Stock Equivalents of HoldingsParent;
(g) Investments (i) (a) by in any Guarantor or the Borrower or any Restricted Subsidiary and (ii) in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit PartiesGuarantors, and in the case of this clause (c) consisting g)(ii), in an aggregate amount not to exceed the Applicable Amount at any time outstanding (valued net in the case of intercompany Investments loans); provided that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among of the Borrower and the its Restricted Subsidiaries (provided that shall not be included in calculating the limitation in this paragraph at any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Partiestime;
(h) Investments constituting Permitted Acquisitions; provided that (i) the aggregate amount of any such investment, as valued at the fair market value of such investment at the time each such investment is made, made by Holdings, the Borrower or any Restricted Subsidiary in any Restricted Foreign Subsidiary, to the extent that such Restricted Foreign Subsidiary does not become a Subsidiary Guarantor pursuant to Section 9.11 and does not enter into the guarantee and collateral arrangements contemplated thereby, shall not exceed the Applicable Amount at the time of such investment plus an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such investment (which amount shall not exceed the amount of such investment valued at the fair market value of such investment at the time such investment was made); and (ii) the Borrower shall have delivered to the Administrative Agent, no later than five Business Days after the date on which such Investment is consummated, a certificate of an Authorized Officer, in form and substance reasonably satisfactory to the Administrative Agent, certifying that all of the requirements set forth in the definition of “Permitted Acquisition” have been satisfied or will be satisfied on or prior to the consummation of such Investment;
(i) (i) other Investments (including but not limited to (i) minority Investments in Minority Investments and Investments in Unrestricted Subsidiaries, ) and (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons entities that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case case, as valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (zy) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time);
(j) dividends permitted under Section 10.6;
(k) Investments in Hedge Agreements;
(l) Investments constituting non-cash proceeds of Dispositions sales, transfers and other dispositions of assets to the extent permitted by Section 10.4;
10.4(b) or (k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereofc);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) Guarantee Obligations and other Indebtedness otherwise permitted under Section 10.1;
(n) loans and advances made to any direct or indirect parent of the Borrower Parent Guarantor in lieu of, and not in excess of the amount of, dividends any Restricted Payment to the extent permitted to be made pursuant to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments consisting of xxxx xxxxxxx money required in connection with Permitted Acquisitions made not to exceed $40,000,000 in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practicesaggregate at any time;
(p) advances of payroll payments to employees in the ordinary course of businessInvestments constituting deposits or pledges permitted under Section 10.2;
(q) Guarantee Obligations advances of the Borrower payroll payments and expenses to directors, officers, employees, members of management or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into consultants in the ordinary course of business;
(r) Investments held by a Person acquired (including by way consisting of merger or consolidation) after the Original Closing Date otherwise in accordance with this sales of assets and Permitted Sale Leasebacks permitted under Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation 10.4 and were in existence on the date of such acquisition, merger or consolidation10.8;
(s) Investments in Hedge Agreements permitted by Section 10.1;the Acquisition; and
(t) Investments arising out acquisitions by the Borrower or any Parent Guarantor of obligations of one or more directors, officers, employees, members or management or consultants of any Parent Guarantor, the Borrower or its Subsidiaries in connection with such person’s acquisition of Capital Stock of Holdings, Parent (or its parent entity), so long as no cash is actually advanced by the Borrower or any Permitted Receivables Financing;
(u) Investments in the ordinary course of business its Subsidiaries to such persons in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions acquisition of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Datesuch obligations.
Appears in 5 contracts
Samples: Credit Agreement (WideOpenWest Finance, LLC), Credit Agreement (WideOpenWest Finance, LLC), Credit Agreement (WideOpenWest Finance, LLC)
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries to make Make any Investment exceptexcept for:
(a) extensions of trade credit and credit, asset purchases (including purchases of inventory, supplies and materials) and the licensing or contribution of intellectual property pursuant to joint marketing arrangements with other Persons, in each case in the ordinary course conduct of businessthe Permitted Business;
(b) Investments that were Permitted Investments when such Investments were madeCash Equivalents;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s to finance the purchase of Capital Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, that the amount of such loans and advances used to acquire such Capital Stock or Stock Equivalents shall be contributed to the Borrower in cash as common equity), (ii) for reasonable and customary business related travel expenses, relocation expenses and similar expenses, and (iii) for additional purposes not described in the foregoing subclauses contemplated by subclause (i) and or (ii); provided that the ) above in an aggregate principal amount at any time outstanding pursuant with respect to this subclause clause (iii) shall not exceed exceeding $10,000,0005,000,000 in any fiscal year (with unused amounts in any such period being carried-forward to any succeeding fiscal year);
(d) Investments existing on, or made pursuant to legally binding written commitments on the Funds Availability Date that are set forth in existence on, the 2014 July Repricing Effective Date Schedule 6.05(d) and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of any Investment made all Investments pursuant to this clause (d) is not increased at any time above the amount of such Investment Investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Funds Availability Date;
(e) Investments (i) consisting of the purchase or acquisition of Commodity Hedging Transactions, Interest Rate Hedging Transactions and Currency Hedging Transactions or (ii) resulting from xxxx to market exposure in respect of Commodity Hedging Transactions, Interest Rate Hedging Transactions and Currency Hedging Transactions, in each case to the extent not prohibited by Sections 6.01(j) or 6.15;
(f) Investments received in connection with the bankruptcy or reorganization of trade creditors, trade counterparties, suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdingscustomers;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable)loans) by (i) any Loan Party in another Loan Party, (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on Loan Party in (A) any Loan Party or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faithB) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any another Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit PartiesLoan Party;
(h) Investments constituting Permitted Acquisitions;
(i) Investments made to repurchase or retire common stock of the Borrower owned by any employee stock ownership plan or key employee, directors and officers, or other stock ownership plans of the Borrower;
(j) additional Investments by the Borrower and its Restricted Subsidiaries in entities that are not Loan Parties (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Minority Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, and (iii) Investments in Merchant Acquisition and Processing Alliances Letters of Credit Issued on behalf of (regardless x) EquaGen or any subsidiary of the form of legal entityEquaGen, if EquaGen or such subsidiary is not a Subsidiary Guarantor at such time, or (y) and (iv) Investments in Subsidiaries any Subsidiary that are is not Credit Partiesa Subsidiary Guarantor), but excluding any Proposed Acquisition, in each case as valued at the fair market value (determined by the Borrower acting in good faith) Fair Market Value of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (xA) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) 150,000,000 plus (yB) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Available Amount at such time plus (zC) without duplication of any amount that increased to the JV Distribution extent such amounts do not increase the Available Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value Fair Market Value of such Investment at the time such Investment was made) plus (aaD) the Applicable face amount of any expired, cancelled or terminated Letter of Credit described in clause (iii) above; provided, that after giving effect to such additional Investment (i) such Investment shall result in the Collateral Agent, for the benefit of the Senior Secured Parties, being granted a security interest in any Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of Interests and/or any assets acquired to the extent permitted required by Section 10.4;Sections 5.10 and/or 5.11; (ii) no Default or Event of Default shall have occurred and be continuing and (iii) the Borrower shall be in compliance, on a pro forma basis after giving effect to such Investment, with the Financial Covenants, as such covenants are recomputed as of the last day of the most recently ended fiscal quarter for which financial statements are required to be delivered pursuant to Sections 5.05(a) or 5.05(b) as if such Investment had occurred on the first day of the applicable Test Period.
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof)permitted under Section 6.06;
(l) Investments consisting of dividends constituting Guarantees permitted under Section 10.66.01;
(m) loans and advances to any direct or indirect parent Investments consisting of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent non-cash consideration permitted to be made to such parent in accordance with received under Section 10.66.04(b);
(n) Investments consisting in connection with an Asset Sale or other disposition not prohibited by this Agreement, investments of extensions property or assets of credit in the nature Borrower or any of accounts receivable its Restricted Subsidiaries to the extent reasonably necessary to consummate any disposition of such property or notes receivable arising from assets (or of the grant Capital Stock of trade credit in the ordinary course Person holding such property or assets) permitted hereunder or to optimize the tax benefits or minimize the adverse tax consequences of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of businessany such disposition;
(o) Investments made by the Borrower and its Restricted Subsidiaries in the ordinary course of business consisting of endorsements for collection good faith to invest in nuclear decommissioning trusts or deposit and customary trade arrangements to comply with customers consistent with past practicesdecommissioning agreements;
(p) advances the acquisition by the Borrower of payroll payments to employees in any Equity Interests of EquaGen not owned by the ordinary course of business;
(q) Guarantee Obligations Borrower as of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations Funds Availability Date, provided that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower Collateral Agent shall be granted a security interest in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, such Equity Interests pursuant to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.Section
Appears in 3 contracts
Samples: Credit Agreement (Enexus Energy CORP), Credit Agreement (Enexus Energy CORP), Credit Agreement (Entergy Corp /De/)
Limitation on Investments. The Borrower will notMake any advance, and will not permit loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes, debentures or other debt securities of, or any assets constituting an ongoing business from, or make any other investment in, any other Person (all of the Restricted Subsidiaries to make any Investment foregoing, “Investments”), except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madein Cash Equivalents;
(c) loans and advances to officers, directors and employees Investments arising in connection with the incurrence of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advancesIndebtedness permitted by Sections 7.2(b), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (ie) and (iik); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant loans and advances to legally binding written commitments in existence onemployees of the REIT, the 2014 July Repricing Effective Date Borrower or any Subsidiaries of the Borrower in the ordinary course of business (including, without limitation, for travel, entertainment and any extensionsrelocation expenses) in an aggregate amount for the REIT, renewals or reinvestments thereof, so long as the amount Borrower and Subsidiaries of any Investment made pursuant the Borrower not to this clause (d) is not increased exceed $100,000 at any one time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateoutstanding;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and (other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments than those relating to the extent that payment for such Investments is made with Stock or Stock Equivalents incurrence of Holdings;
(g) Investments (i) (aIndebtedness permitted by Section 7.7(c)) by the Group Members in the Borrower or any Restricted Subsidiary in any Credit PartyGuarantor, provided that, (bx) between immediately prior to and after giving effect to such Investment, no Default or among Restricted Subsidiaries that are not Credit PartiesEvent of Default shall have occurred and be continuing, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if after giving pro forma effect to such Investment, the Borrower shall be in compliance with the Senior Secured Leverage Testprovisions of Section 7.1 hereof;
(f) REIT Permitted Investments; and
(g) Investments by the Borrower or any of its Subsidiaries, both before and consisting of Acquisitions; provided that the Administrative Agent shall have received a certificate of a Principal Financial Officer (i) certifying that after giving effectpro forma effect to such Acquisition, on a Pro Forma Basis the Total Revolving Extensions of Credit shall not exceed the Maximum Facility Availability, (ii) containing all information and calculations necessary, after giving pro forma effect to the making of such Investment, for determining pro forma compliance with the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time provisions of Section 7.1 hereof and (iii) by Credit Parties in any Restricted Subsidiary certifying that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited immediately prior to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made effect to such parent in accordance with Section 10.6;
(n) Investments consisting Acquisition, no Default or Event of extensions of credit in the nature of accounts receivable Default shall have occurred or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Datecontinuing.
Appears in 3 contracts
Samples: Amendment and Restatement Agreement (Chatham Lodging Trust), Credit Agreement (Chatham Lodging Trust), Credit Agreement (Chatham Lodging Trust)
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to make any Investment except:
(a) extensions of trade credit and asset purchases of assets and services (including purchases of inventory, supplies and materials) in the ordinary course of business;
(b) Investments in assets that were constituted Permitted Investments when at the time such Investments were made;
(c) loans and advances to officers, directors directors, employees and employees consultants of the Borrower (or any direct or indirect parent thereof) or any of its Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash cash) and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,00020,000,000;
(di) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Closing Date as set forth on Schedule 10.5, (ii) Investments existing on the Closing Date of the Borrower or any Subsidiary in any other Subsidiary and (iii) any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateset forth on Schedule 10.5;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents (other than Disqualified Stock not otherwise permitted by Section 10.1) of Holdingsthe Borrower (or any direct or indirect parent thereof);
(g) Investments (i) by the Borrower in any Guarantor or by any Guarantor in the Borrower, (aii) by any Restricted Subsidiary that is not a Guarantor in the Borrower or any other Restricted Subsidiary, and (iii) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties Guarantor in any Restricted Subsidiary that is not a Credit PartyGuarantor, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value Fair Market Value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was is made, in an aggregate amount pursuant to this Section 10.5(g)(iii) that, at the time such Investement is made, would not exceed the sum of (xA) the greater of $1,000,000,000125,000,000 and 1.25% of Consolidated Total Assets (measured as of the date such Investment is made based upon the financial statements most recently available prior to such date), when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x(B) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Equity Amount at such time plus and (zC) to the extent not otherwise included in the determination of the Applicable Equity Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount shall not exceed the amount of such Investment valued at the Fair Market Value of such Investment at the time such Investment was made) (it being understood that to the extent any Investment made pursuant to this Section 10.5(g)(iii) was made by using the Applicable Equity Amount, then the amounts referred to in clause (C) shall, to the extent of the original usage of the Applicable Equity Amount, be deemed to reconstitute such amounts).
(h) Investments constituting Permitted Acquisitions; provided that the aggregate amount of Permitted Acquisition Consideration of such Permitted Acquisitions made or provided by the Borrower or any Subsidiary Guarantor to acquire any Restricted Subsidiary that does not become a Subsidiary Guarantor or merge, consolidate or amalgamate into the Borrower or a Subsidiary Guarantor or any assets that shall not, immediately after giving effect to such Permitted Acquisition, be owned by the Borrower or a Subsidiary Guarantor, shall not exceed the sum of (i) the greater of $250,000,000 and 2.50% of Consolidated Total Assets after giving effect to such Permitted Acquisitions, (ii) the Applicable Equity Amount at such time and (iii) by Credit Parties to the extent not otherwise included in the determination of the Applicable Equity Amount, an amount equal to any Restricted Subsidiary that is not a Credit Party so long as repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment is part (which amount shall not exceed the amount of a series such Investment valued at the Fair Market Value of simultaneous Investments such Investment at the time such Investment was made) (it being understood that to the extent any Investment made pursuant to this Section 10.5(h) was made by Restricted Subsidiaries using the Applicable Equity Amount, then the amounts referred to in other Restricted Subsidiaries that result in this clause (iii) shall, to the proceeds extent of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitionsoriginal usage of the Applicable Equity Amount, be deemed to reconstitute such amounts);
(i) Investments (including but not limited to (i) minority Minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties, (iv) Permitted Acquisitions and (v) Investments in respect of royalty trusts and master limited partnerships), in each case valued at the fair market value Fair Market Value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (iSection 10.5(i) that, at the time each such Investment is made, would not exceed the sum of (xA) the greater of (1) $1,000,000,000 when taken together with Investments outstanding at 125,000,000 and (2) 1.25% of Consolidated Total Assets (measured as of the date such time in reliance on Section 10.5(g)(ii)(xInvestment is made based upon the financial statements most recently available prior to such date) plus (yB) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Equity Amount at such time plus (zC) without duplication to the extent not otherwise included in the determination of any amount that increased the JV Distribution Applicable Equity Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value Fair Market Value of such Investment at the time such Investment was made) plus (aait being understood that to the extent any Investment made pursuant to this Section 10.5(i) was made by using the Applicable Equity Amount Amount, then the amounts referred to in the clause (C) shall, to the extent of the original usage of the Applicable Equity Amount, be deemed to reconstitute such amounts); provided that the foregoing limits shall not apply during the period in which, and Investments may be made pursuant to this Section 10.5(i) without limit at any such time during which, after giving Pro Forma Effect to the making of any such Investment, (1) no Event of Default shall have occurred and be continuing and (2) Liquidity is not less than 10% of the then effective Borrowing Base (on a Pro Forma Basis after giving effect to such Investment); provided, further, that intercompany current liabilities incurred in the ordinary course of business and consistent with past practices, in connection with the cash management operations of the Borrower and the Subsidiaries shall not be included in calculating any limitations in this paragraph at any time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by the Co-Investors or its Affiliates or any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends Dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends Dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of business;
(q) Guarantee Obligations guarantee obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1Industry Investments and in interests in additional Oil and Gas Properties and gas gathering systems related thereto or Investments related to farm-out, farm-in, joint operating, joint venture, joint development or other area of mutual interest agreements, other similar industry investments, gathering systems, pipelines or other similar oil and gas exploration and production business arrangements whether through direct ownership or ownership through a joint venture or similar arrangement;
(t) Investments arising out of or in connection with any Permitted Receivables FinancingTo the extent constituting Investments, the Transactions;
(u) Investments in the ordinary course of business in connection with SettlementsHedge Agreements permitted by Section 10.1 and Section 10.10;
(v) Investments consisting of Indebtedness, fundamental changes, Dispositions and Dividends permitted under Sections 10.1, 10.3, 10.4 and 10.6 (other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3than 10.6(c)); and
(xw) Investments consisting of licensing of intellectual property pursuant to joint marketing arrangements with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.
Appears in 3 contracts
Samples: Credit Agreement (Samson Resources Corp), Fourth Amendment Agreement (Samson Resources Corp), Credit Agreement (Samson Holdings, Inc.)
Limitation on Investments. The (a) During an Investment Grade Period:
(i) the Borrower will not, and will not permit any of its Restricted Subsidiaries to, make or hold Investments in Unrestricted Subsidiaries, except that the Borrower or any Restricted Subsidiary may make and hold an Investment in any Unrestricted Subsidiary (in each case valued at the Fair Market Value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made) so long as after giving pro forma effect to such Investment (i) no Default or Event of Default has occurred and is continuing or would result therefrom and (ii) the Borrower shall be in compliance with the Financial Performance Covenants on a pro forma basis after giving effect to such Investment, as such covenants are recomputed as at the last day of the most recently ended Test Period as if such Investment had occurred on the first day of such Test Period;
(ii) neither the Borrower nor any Restricted Subsidiary may guarantee or otherwise become liable in respect of any Indebtedness or other obligations of, grant any Lien on any of its property to secure any Indebtedness of or other obligation of, or provide any other form of credit support to, any Unrestricted Subsidiary; and
(iii) no Unrestricted Subsidiary may, directly or indirectly, make any Investment in the Borrower or any Restricted Subsidiary.
(b) During a Borrowing Base Trigger Period, the Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to make any Investment except:
(ai) extensions of trade credit and asset purchases of assets and services (including purchases of inventory, supplies and materials) in the ordinary course of business;
(bii) Investments in assets that were constituted Permitted Investments when at the time such Investments were made;
(ciii) loans and advances to officers, directors directors, employees and employees consultants of the Borrower (or any direct or indirect parent thereof) or any of its Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash cash) and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,00020,000,000;
(dA) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Funding Date as set forth on Schedule 11.5, (B) Investments existing on the Funding Date of the Borrower or any Subsidiary in any other Subsidiary and (C) any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (div) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateset forth on Schedule 11.5;
(ev) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(fvi) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents (other than Disqualified Stock not otherwise permitted by Section 11.1) of Holdingsthe Borrower (or any direct or indirect parent thereof);
(gvii) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Funding Date pursuant to this subclause (ii), when in Unrestricted Subsidiaries in each case valued at the fair market value Fair Market Value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was is made, in an aggregate amount that, at the time each such Investment is made, would not exceed 10% of the sum then-effective Borrowing Base; provided that no Event of (x) $1,000,000,000Default shall then exist and, when taken together with Investments outstanding at to the extent such time Investment is made in reliance on Section 10.5(i)(x) plus (y) if the form of a transfer of assets other than cash or Permitted Investments, the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and Financial Performance Covenants on a pro forma basis after giving effect, on a Pro Forma Basis effect to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in covenants are recomputed as at the proceeds last day of the initial most recently ended Test Period as if such Investment being invested in one or more Credit Partieshad occurred on the first day of such Test Period;
(h) Investments constituting Permitted Acquisitions;
(iviii) Investments (including but not limited to (iA) minority Investments Permitted Acquisitions and Investments in Unrestricted Subsidiaries, (iiB) Investments in joint ventures (regardless respect of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition Royalty Trusts and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Partiesmaster limited partnerships), in each case valued at the fair market value Fair Market Value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (iSection 11.5(b)(viii) that, at the time each such Investment is made, would not exceed the sum of (xa) the greater of (1) $1,000,000,000 when taken together with Investments outstanding at 125,000,000 and (2) 1.25% of Consolidated Total Assets (measured as of the date such time in reliance on Section 10.5(g)(ii)(xInvestment is made based upon the financial statements most recently available prior to such date) plus (yb) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Equity Amount at such time plus (zc) without duplication to the extent not otherwise included in the determination of any amount that increased the JV Distribution Applicable Equity Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value Fair Market Value of such Investment at the time such Investment was made); provided that the foregoing limits shall not apply during the period in which, and Investments may be made pursuant to this Section 11.5(b)(viii) plus without limit at any such time during which, after giving pro forma effect to the making of any such Investment, (aa1) no Event of Default shall have occurred and be continuing and (2) Liquidity is not less than 10% of the Applicable Equity Amount then-effective Revolving Loan Limit (on a pro forma basis after giving effect to such Investment); provided, further, that intercompany current liabilities incurred in the ordinary course of business and consistent with past practices, in connection with the cash management operations of the Borrower and the Subsidiaries shall not be included in calculating any limitations in this paragraph at such any time;
(jix) Investments constituting non-cash proceeds of Dispositions of assets to the extent such Disposition is permitted by Section 10.411.4;
(kx) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(mxi) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends Restricted Payments to the extent permitted to be made to such parent in accordance with Section 10.611.6;
(nxii) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(oxiii) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(pxiv) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of business;
(qxv) Guarantee Obligations guarantee obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(rxvi) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Funding Date otherwise in accordance with this Section 10.5 11.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.
Appears in 3 contracts
Samples: Credit Agreement (California Resources Corp), Credit Agreement (California Resources Corp), Credit Agreement (California Resources Corp)
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to make any Investment except:
(a) extensions of trade credit and credit, asset purchases (including purchases of inventory, fuel (including all forms of nuclear fuel), supplies, materials and equipment) and the licensing or contribution of intellectual property pursuant to joint marketing arrangements or development agreements with other Persons, in each case in the ordinary course of businessbusiness (including in respect of construction or restoration activities);
(b) Investments that were in cash or Permitted Investments when such Investments were made;
(c) loans and advances to officers, directors directors, employees and employees consultants of the Borrower (or any direct or indirect parent thereof) or any Subsidiary of its Subsidiaries the Borrower (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower Holdings (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash cash) and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,00025,000,000 at any one time outstanding;
(d) Investments (i) contemplated by the Plan or to consummate the Transactions and (ii) existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Closing Date and, to the extent such Investments exceed $15,000,000, set forth on Schedule 10.5 and any extensionssupplement, renewals amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or reinvestments extension thereof, so long as only to the extent that the amount of any Investment made pursuant to this clause (dd)(ii) is does not increased at any time above exceed the amount of such Investment existing onset forth on Schedule 10.5 (except by an amount equal to the unpaid accrued interest and premium thereon plus any unused commitments plus amounts paid in respect of fees, premiums, costs and expenses incurred in connection with such supplement, amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateextension or as otherwise permitted hereunder);
(e) Investments received any Investment acquired by the Borrower or any Restricted Subsidiary (a) in exchange for any other Investment or accounts receivable held by the Borrower or any such Restricted Subsidiary in connection with the bankruptcy or reorganization as a result of suppliers a bankruptcy, workout, reorganization, or customers and in recapitalization of, or settlement of delinquent obligations ofaccounts or disputes with or judgments against, and other disputes withthe issuer, customers arising in obligor or borrower of such original Investment or accounts receivable, (b) as a result of a foreclosure by the ordinary course of business Borrower or upon foreclosure any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured InvestmentInvestment in default or (c) as a result of the settlement, compromise or resolution of litigation, arbitration or other disputes with Persons who are not Affiliates;
(f) Investments to the extent that payment for such Investments is made with (i) Stock or Stock Equivalents (other than Disqualified Stock) of Holdingsthe Borrower (or any direct or indirect parent thereof) or (ii) the proceeds from the issuance of Stock or Stock Equivalents (other than Disqualified Stock, any Cure Amount, any sale or issuance to any Subsidiary and any issuance applied pursuant to Section 10.6(a) or Section 10.6(b)(i)) of the Borrower (or any direct or indirect parent thereof); provided that such Stock or Stock Equivalents or proceeds of such Stock or Stock Equivalents will not increase the Applicable Equity Amount;
(g) Investments (i) (aA) by the Borrower or any Restricted Subsidiary in any Credit Party, (bB) between or among Restricted Subsidiaries that are not Credit Parties, and (cC) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary of the Borrower that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), ; (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Closing Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would is not exceed in excess of, when combined with, and without duplication of, the sum aggregate amount of Investments made pursuant to Section 10.5(i), an amount equal to the greater of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus 300,000,000 and (y) if 17.5% of Consolidated EBITDA for the Borrower shall be in compliance with most recently ended Test Period (calculated on a Pro Forma Basis), provided, that to the Senior Secured extent the Consolidated Total Net Leverage Test, both before and after giving effect, Ratio is not greater than 3.0 to 1.0 (calculated on a Pro Forma Basis to at the making time of such Investment), the Applicable Amount at such time plus Investments pursuant to this clause (zg)(ii)) the Applicable Equity Amount at such time shall be unlimited; and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries; provided that the aggregate amount of any such Investment, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case as valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, made by the Borrower or any Subsidiary Guarantor in any Restricted Subsidiary that, after giving effect to such Investment, shall not be a Guarantor, shall not cause the aggregate amount of all such Investments made pursuant to this clause (h) (as so valued at the time each such investment is made) to exceed the sum of (i) $300,000,000, plus (ii) the Applicable Equity Amount at such time plus (iii) the Applicable Amount at such time; provided that in respect of any Investments made in reliance of clause (ii) of the definition of “Applicable Amount”, no Event of Default under Section 11.1 or Section 11.5 shall have occurred and be continuing or would result therefrom;
(i) Investments constituting (i) Minority Investments and Investments in Unrestricted Subsidiaries and Excluded Project Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries and (iii) Investments in Subsidiaries that are not Credit Parties, in each case valued at the fair market value (determined the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount at any one time outstanding pursuant to this clause (i) that, at the time each such Investment is made, would not exceed exceed, when combined with, and without duplication of, the sum aggregate amount of Investments made pursuant to clause (ii) of Section 10.5(g), an amount equal to the greater of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus 300,000,000 and (y) if 17.5% of Consolidated EBITDA for the Borrower shall be in compliance with most recently ended Test Period (calculated on a Pro Forma Basis), provided, that to the Senior Secured extent the Consolidated Total Net Leverage Test, both before and after giving effect, Ratio is not greater than 3.0 to 1.0 (calculated on a Pro Forma Basis to at the making time of such Investment), the Applicable Amount at such time plus Investments pursuant to this clause (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (zi) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such timebe unlimited;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof) in an aggregate amount, when combined with distributions made pursuant to Section 10.6(b), not to exceed the limitations set forth in such Section;
(l) Investments consisting of or resulting from Indebtedness, Liens, dividends or other payments, fundamental changes and Dispositions permitted under by Section 10.610.1 (other than Sections 10.1(b), 10.1(d) and 10.1(e)(ii), but including in any event Section 10.1(e)(iv)), 10.2 (other than Liens Section 10.2(m)), 10.3 (other than Section 10.3(j)), 10.4 (other than Section 10.4(d)), 10.6 (other than Section 10.6(f)), 10.7 or 10.8, as applicable;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends or other payments to the extent permitted to be made to such parent in accordance with Section 10.6; provided that the aggregate amount of such loans and advances shall reduce the ability of the Borrower and the Restricted Subsidiaries to make dividends under the applicable clauses of Section 10.6 by such amount;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger merger, amalgamation or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger merger, amalgamation or consolidation;
(s) Investments in Hedge Hedging Agreements permitted by Section 10.1;
(t) Investments in or by a Receivables Entity or a Securitization Entity arising out of of, or in connection with with, any Permitted Receivables Financing or Qualified Securitization Financing, as applicable; provided, however, that any such Investment in a Receivables Entity or a Securitization Subsidiary is in the form of a contribution of additional Receivables Facility Assets or Securitization Assets, as applicable, or as equity;
(u) Investments consisting of deposits of cash and Permitted Investments as collateral support permitted under Section 10.2;
(v) other Investments not to exceed an amount equal to (x) the Applicable Equity Amount at the time such Investments are made plus (y) the Applicable Amount at such time, provided that in respect of any Investments made in reliance of clause (ii) of the definition of “Applicable Amount”, no Event of Default under Section 11.1 or Section 11.5 shall have occurred and be continuing or would result therefrom;
(w) other Investments in an amount at any one time outstanding equal to the greater of (x) $300,000,000 and (y) 17.5% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis);
(x) Investments consisting of purchases and acquisitions of assets and services in the ordinary course of business (including in respect of construction or restoration activities);
(y) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property Article 3 endorsements for collection or deposit and Article 4 customary trade arrangements with other Persons in the ordinary course of businesscustomers consistent with past practice;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments made as a part of, or in connection with or to otherwise fund the Transactions;
(aa) [reserved];
(bb) Investments relating to pension trusts;
(cc) Investments by any Credit Party Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by the Borrower and the Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the intercompany Investment being invested in one or more Credit Parties;
(dd) Investments relating to nuclear decommission trusts and nuclear insurance and self-insurance organizations or arrangements;
(ee) Investments in the form of, or pursuant to, 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 or other fuel or commodities, unitization agreements, pooling agreements, 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 each case, made or entered into in the ordinary course of business;
(ff) Investments in wind or other renewable energy projects or in any nuclear power or energy joint venture or in assets comprising an energy generating facility or unit or in any Similar Business, in an aggregate amount not to exceed the fair market greater of (x) $300,000,000 and (y) 17.5% of Consolidated EBITDA at any time outstanding;
(gg) to the extent constituting Investments, transactions pursuant to the Shared Services and Tax Agreements permitted under Section 10.6(n));
(hh) Investments in connection with Permitted Reorganizations or an IPO Reorganization Transaction;
(ii) Investments in deposit accounts, commodities and securities accounts opened in the ordinary course of business;
(jj) Investments solely to the extent such Investments reflect an increase in the value of all dividends Investments otherwise permitted under this Agreement;
(kk) Investments in prepaid expenses, negotiable instruments held for collection and lease, utility and workers compensation, performance and similar deposits entered into as a result of the operations of the business in the ordinary course of business;
(ll) Loans repurchased by the Borrower or a Restricted Subsidiary pursuant to and in accordance with Section 13.6(h);
(mm) loans to, or letters of credit (including Letters of Credit) to be issued on behalf of, any of the Borrower’s direct or indirect parent companies or such parents’ Subsidiaries for working capital purposes, in each case so long as made in the ordinary course of business or consistent with past practices and in an amount not to exceed $50,000,000 at any time outstanding; and
(nn) other distributions received by Credit Parties from Restricted Subsidiaries Investments in an unlimited amount, provided that are the Borrower shall be in compliance on a Pro Forma Basis with a Consolidated Total Net Leverage Ratio not Credit Parties since the Initial Effectiveness Dategreater than 3.0 to 1.0.
Appears in 3 contracts
Samples: Credit Agreement (Vistra Corp.), Credit Agreement (Vistra Corp.), Credit Agreement (Vistra Energy Corp.)
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to make any Investment except:
(a) extensions of trade credit and credit, asset purchases (including purchases of inventory, fuel (including all forms of nuclear fuel), supplies, materials and equipment) and the licensing or contribution of intellectual property pursuant to joint marketing arrangements or development agreements with other Persons, in each case in the ordinary course of businessbusiness (including in respect of construction or restoration activities);
(b) Investments that were Permitted Investments when such Investments were made;
(c) loans and advances to officers, directors directors, employees and employees consultants of the Borrower (or any direct or indirect parent thereof) or any Subsidiary of its Subsidiaries the Borrower (ig) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (iih) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower Parent (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash cash) and (iiii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,00025,000,000 at any one time outstanding;
(d) Investments (i) existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date date hereof as set forth on Schedule 10.5 and any modifications, extensions, renewals or reinvestments thereof and (ii) existing on the date hereof of the Borrower or any Restricted Subsidiary in the Borrower or any Subsidiary of the Borrower and any modification, extension, renewal or reinvestment thereof, so long as only to the extent that the amount of any Investment made pursuant to this clause (d) is d does not increased at any time above exceed the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateset forth on Schedule 10.5;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents (other than Disqualified Stock) of Holdingsthe Borrower (or any direct or indirect parent thereof);
(g) Investments (i) (aA) by the Borrower or any Restricted Subsidiary in any Credit Party, (bB) between or among Restricted Subsidiaries that are not Credit Parties, and (cC) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary of the Borrower that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), ; (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Closing Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would is not exceed in excess of, when combined with, and without duplication of, the aggregate amount of Investments made pursuant to the proviso to Section 10.5(h), an amount equal to the sum of (w) $1,000,000,000 plus (x) $1,000,000,000, when taken together with Investments outstanding the Applicable Equity Amount at such time in reliance on Section 10.5(i)(x) plus (y) if to the Borrower shall be in compliance with extent that the Senior Consolidated Secured Leverage Test, both before and Debt to Consolidated EBITDA Ratio is not greater than 5.0 to 1.00 after giving effect, on a Pro Forma Basis Basis, to the making of such Investment, the Applicable Amount at such time plus (z) to the extent not otherwise included in the determination of the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made); and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions; provided that the aggregate amount of any such Investment, as valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, made by the Borrower or any Subsidiary Guarantor in any Restricted Subsidiary that, after giving effect to such Investment, shall not be a Guarantor, shall not cause the aggregate amount of all such Investments made pursuant to this clause (h) (as so valued at the time each such investment is made) to exceed, when combined with, and without duplication of, the aggregate amount of Investments made pursuant to clause (ii) of Section 10.5(g), an amount equal to the sum of (i) $1,000,000,000, plus (aaii) the Applicable Equity Amount at such timetime plus (iii) to the extent the Consolidated Secured Debt to Consolidated EBITDA Ratio is not greater than 5.0 to 1.0 after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount at such time plus (iv) to the extent not otherwise included in the determination of the Applicable Equity Amount or the Applicable Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this clause (iv) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made);
(i) Investments (including but not limited to (i) Minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries and (iii) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (w) $1,000,000,000 plus (x) the Applicable Equity Amount at such time plus (y) to the extent the Consolidated Secured Debt to Consolidated EBITDA Ratio is not greater than 5.0 to 1.00 after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount at such time plus (z) to the extent not otherwise included in the determination of the Applicable Equity Amount or the Applicable Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made);
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof) in an aggregate amount, when combined with distributions made pursuant to Section 10.6(b), not to exceed the limitations set forth in such Section;
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6; provided that the aggregate amount of such loans and advances shall reduce the ability of the Borrower and the Restricted Subsidiaries to make dividends under the applicable clauses of Section 10.6 by such amount;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger merger, amalgamation or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger merger, amalgamation or consolidation;
(s) Investments in Hedge Hedging Agreements permitted by Section 10.1;
(t) Investments arising out of of, or in connection with with, any Permitted Receivables Financing;
(u) Investments in the ordinary course consisting of business in connection with Settlementsdeposits of cash and Permitted Investments as collateral support permitted under Section 10.2;
(v) other Investments, thatwhich, when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(i) from the Closing Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by Section 10.6(c) and (iii) all dividends paid pursuant to Section 10.6(c), shall not exceed an amount equal to (w) $500,000,000 plus (x) the Applicable Equity Amount at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 Investments are made plus (y) if to the Borrower shall be in compliance with extent the Senior Consolidated Secured Leverage Test, both before and Debt to Consolidated EBITDA Ratio is not greater than 5.0 to 1.0 after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount at such time plus (z) to the extent not otherwise included in the determination of the Applicable Equity Amount or the Applicable Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such timeInvestment at the time such Investment was made);
(w) Investments in connection with any transaction permitted by Section 10.3; and[Reserved];
(x) Investments consisting of licensing purchases and acquisitions of intellectual property with other Persons assets and services in the ordinary course of businessbusiness (including in respect of construction or restoration activities);
(y) Investments constituting contributions in the ordinary course of business consisting of Article 3 endorsements for collection or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; anddeposit and Article 4 customary trade arrangements with customers consistent with past practice;
(z) Investments made as a part of or in connection with the Transactions, including any payments to be made in connection with the Parent’s and its Subsidiaries’ long-term incentive plan or in respect of tax gross-ups and other deferred compensation;
(aa) Investments consisting of Indebtedness permitted by any Section 10.1 (but only to the extent such Indebtedness was permitted without reference to Section 10.5) or fundamental changes permitted by Section 10.3;
(bb) Investments relating to pension trusts;
(cc) Investments by Credit Party Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by the Borrower and the Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the intercompany Investment being invested in one or more Credit Parties;
(dd) Investments relating to nuclear decommission trusts;
(ee) Investments in the form of, or pursuant to, 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 agreements, 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 each case, made or entered into in the ordinary course of business; and
(ff) Investments in Shell Wind valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (ff) that, at the time each such Investment is made, would not exceed the sum of (w) $1,000,000,000 in the aggregate (of which no portion may be used in fiscal 2007, up to $250,000,000 may be used in fiscal 2008 and up to $300,000,000 may be used in each subsequent fiscal year) plus (x) the Applicable Equity Amount at such time plus (y) to the extent the Consolidated Secured Debt to Consolidated EBITDA Ratio is not greater than 5.0 to 1.0 after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount at such time plus (z) to the extent not otherwise included in the determination of the Applicable Equity Amount or the Applicable Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since such Investment at the Initial Effectiveness Datetime such Investment was made).
Appears in 3 contracts
Samples: Credit Agreement (Energy Future Intermediate Holding CO LLC), Credit Agreement (Energy Future Intermediate Holding CO LLC), Credit Agreement (Energy Future Holdings Corp /TX/)
Limitation on Investments. The Borrower will notMake or hold any Investments, and will not permit any of the Restricted Subsidiaries to make any Investment except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madein cash, Cash Equivalents or Investment Grade Securities;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) Investments arising in connection with such Person’s purchase the incurrence of Stock Indebtedness permitted by Section 7.02(e) or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, loans and advances to employees of the Company or made pursuant to legally binding written commitments in existence on, any Restricted Subsidiaries of the 2014 July Repricing Effective Date and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising Company in the ordinary course of business or upon foreclosure with respect (including, without limitation, for travel, entertainment and relocation expenses) in an aggregate amount for the Company and Restricted Subsidiaries of the Company not to exceed $5,000,000 at any secured Investment or other transfer of title with respect to any secured Investmenttime outstanding;
(e) Hedge Agreements permitted under Section 7.15;
(f) Investments to in the extent that payment for such Investments is Company’s business made by the Company or any of its Restricted Subsidiaries with Stock or Stock Equivalents the proceeds of Holdingsany Reinvestment Deferred Amount;
(g) Investments (i) (a) by made or received in order to facilitate the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit PartiesTransactions;
(h) Investments constituting Permitted AcquisitionsAcquisitions (including the formation of Restricted Subsidiaries in connection therewith);
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting Company in good faith) of such Investment at any Restricted Subsidiary or by any Restricted Subsidiary in the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of Company or any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such timeother Restricted Subsidiary;
(j) Investments constituting any Investment made as a result of the receipt of non-cash proceeds of Dispositions of assets consideration for a Disposition that was made pursuant to the extent permitted by and in compliance with Section 10.47.05;
(k) Investments made to repurchase or retire Stock or Stock Equivalents received as part of the Borrower settlement of litigation or in satisfaction of extensions of credit to any direct Person pursuant to the reorganization, bankruptcy or indirect parent thereof owned by any employee liquidation of such Person or any stock ownership plan or key employee stock ownership plan a good faith settlement of the Borrower (or any direct or indirect parent thereof)debts with such Person;
(l) Investments consisting received in settlement of dividends permitted under Section 10.6;
(m) loans and advances amounts due to the Company or any direct or indirect parent Restricted Subsidiary of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers Company effected in the ordinary course of business;
(om) Investments in accounts, contract rights and chattel paper (each as defined in the UCC), notes receivable and similar items arising or acquired from the sale of inventory in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with the past practicespractice of the Company and its Restricted Subsidiaries;
(pn) advances Investments by the Company or any of payroll payments its Restricted Subsidiaries in an aggregate amount at any time outstanding not to employees in the ordinary course of businessexceed $25,000,000;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (zo) the Applicable Equity Amount at such time;
(w) Company and its Restricted Subsidiaries may make Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value Available Amount at such time (as determined immediately before giving effect to the making of all dividends such Investment) so long as (A) no Default or Event of Default then exists or would result therefrom and other distributions received (B) the Company would at the time of and immediately after giving effect to such Investment be in compliance with (i) the Interest Coverage Ratio Covenant and (ii) a Total Net Leverage Ratio of not greater than 2.00 to 1.00, in each case, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period;
(p) Investments by Credit Parties from the Company and its Restricted Subsidiaries that are in joint ventures in an aggregate amount at any time outstanding not Credit Parties since the Initial Effectiveness Date.to exceed $25,000,000;
(q) Investments consisting of Securitization Assets or made in connection with any Permitted Securitization Financing;
Appears in 3 contracts
Samples: Credit Agreement (Harsco Corp), Amendment Agreement (Harsco Corp), Amendment and Restatement Agreement (Harsco Corp)
Limitation on Investments. The Borrower RailAmerica will not, and will not permit any of the Restricted Subsidiaries to to, make any Investment advance, loan, extensions of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets of, or make any other investment (including pursuant to any Guarantee Obligation with respect to the obligations of another Person) (“Investments”) in, any Person, except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madeInvestments;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) RailAmerica or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s to finance the purchase of Stock or Stock Equivalents capital stock of the Borrower RailAmerica (or any direct or indirect a parent company thereof); ) (provided that, to the extent such loans and advances are made in cash, that the amount of such loans and advances used to acquire such Stock or Stock Equivalents capital stock shall be contributed by such parent company to the Borrower RailAmerica in cash and (iii) for purposes not described in the foregoing subclauses (ias common equity) and (ii); provided that the ) for additional purposes not contemplated by subclause (i) above in an aggregate principal amount at any time outstanding pursuant with respect to this subclause clause (iiiii) shall not exceed exceeding $10,000,0005.0 million;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Closing Date and listed on Schedule 10.5 and any extensions, renewals or reinvestments thereofwith respect to any return therefrom (including through a repayment, so long as return of capital, interest or dividends) (but without any increase in the amount thereof and in the case of any Investment reinvestment, only if such reinvestment is made pursuant to this clause (d) is not increased at within 60 days after the date of receipt of any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Datereturned amount);
(e) Hedge Agreements permitted by Section 10.1(A)(g);
(f) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investmentbusiness;
(fg) Investments to the extent that payment for such Investments investments is made solely with Stock capital stock (other than Disqualified Capital Stock) of RailAmerica or Stock Equivalents with the net cash proceeds from a sale of Holdings;
capital stock (gother than Disqualified Capital Stock) Investments of RailAmerica (i) (a) by the Borrower other than to a Subsidiary or to a management equity plan or stock option-plan or any Restricted Subsidiary in any Credit Party, (bother management or employee benefit plan or agreement) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 contributions to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount common equity capital of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit PartiesRailAmerica;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions sales, transfers and other dispositions of assets to the extent permitted by Section 10.4;
(ki) (i) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower in RailAmerica, RATC or any direct or indirect parent thereof owned Subsidiary Guarantor, (ii) Investments by any employee Restricted Subsidiary that is not RATC or a Subsidiary Guarantor in any other Restricted Subsidiary that is not RATC or a Subsidiary Guarantor and (iii) Investments by RailAmerica, RATC or any stock ownership plan Subsidiary Guarantor in any Restricted Subsidiary that is not RATC or key employee stock ownership plan of the Borrower (or a Subsidiary Guarantor in an aggregate principal amount not to exceed $10.0 million at any direct or indirect parent thereof)time outstanding;
(lj) Investments consisting Permitted Acquisitions, provided that (i) no Event of dividends permitted under Default shall have occurred and be continuing or would result therefrom and (ii) on a Pro Forma Basis after giving effect to such Permitted Acquisition either (A) (x) no Loans or Unpaid Drawings shall be outstanding or were outstanding for the period of sixty (60) consecutive days (or, if less, the number of days from and including the Closing Date to and including the date of determination) immediately preceding consummation of such Permitted Acquisition and (y) no Loans are projected to be outstanding for the period of sixty (60) consecutive days immediately following consummation of such Permitted Acquisition or (B) (x) the Fixed Charge Coverage Ratio for the most recently ended Test Period for which Section 10.6;
9.1 Financials have been delivered would be at least (mI) loans for any Test Period ended on or before June 30, 2010, 1.15 to 1.00 and advances (II) for any Test Period ended after June 30, 2010, 1.25 to any direct or indirect parent 1.00, (y) average daily Availability for the period of sixty (60) consecutive days (or, if less, the Borrower in lieu ofnumber of days from and including the Closing Date to and including the date of determination) immediately preceding consummation of such Permitted Acquisition has been, and for the period of sixty (60) consecutive days immediately following consummation of such Permitted Acquisition is projected by RailAmerica to be, not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other less than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence $20.0 million on the date of consummation of such acquisitionPermitted Acquisition and (iii) at the time of making such Permitted Acquisition, merger or consolidationRailAmerica shall have delivered to the Administrative Agent an officer’s certificate of an Authorized Officer certifying satisfaction with the conditions set forth in clauses (i) and (ii) above;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(vk) other Investments, provided that, at the time each such Investment is mademade or otherwise acquired and after giving effect thereto (i) no Event of Default shall have occurred and be continuing or would result therefrom, would not exceed the sum of (ii) on a Pro Forma Basis after giving effect to such Investment either (A) (x) $750,000,000 plus no Loans or Unpaid Drawings shall be outstanding or were outstanding for the period of sixty (60) consecutive days (or, if less, the number of days from and including the Closing Date to and including the date of determination) immediately preceding such Investment and (y) if no Loans are projected to be outstanding for the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, period of sixty (60) consecutive days immediately following such Investment or (B) on a Pro Forma Basis, (x) the Fixed Charge Coverage Ratio for the most recently ended Test Period is at least (I) for any Test Period ended on or before June 30, 2010, 1.15 to 1.00 and (II) for any Test Period ended after June 30, 2010, 1.25 to 1.00, and (y) average daily Availability for the period of sixty (60) consecutive days (or, if less, the number of days from and including the Closing Date to and including the date of determination) immediately preceding such Investment has been and for the period of sixty (60) consecutive days immediately following such Investment is projected by RailAmerica to be not less than $20.0 million on the date of such Investment and (iii) at the time of making of such Investment, RailAmerica shall have delivered to the Applicable Amount plus Administrative Agent an officer’s certificate of an Authorized Officer certifying satisfaction with the conditions set forth in clauses (zi) the Applicable Equity Amount at such timeand (ii) above;
(wl) other Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received $5.0 million;
(m) Investments constituting Restricted Payments permitted by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.Section 10.6; and
Appears in 2 contracts
Samples: Credit Agreement (Railamerica Inc /De), Credit Agreement (Railamerica Inc /De)
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to make any Investment except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were mademade or Investments in Investment Grade Securities;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash cash) and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date date hereof as set forth on Schedule 10.5 and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateset forth on Schedule 10.5;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Closing Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would is not exceed the sum in excess of (w) $25,000,000 plus (x) $1,000,000,000, when taken together with Investments outstanding the Applicable Equity Amount at such time in reliance on Section 10.5(i)(x) plus (y) if to the Borrower shall be in compliance with extent the Consolidated Senior Secured Leverage TestDebt to Consolidated EBITDA Ratio is not greater than 4.25 to 1.00, both before and after giving effect, on a Pro Forma Basis Basis, to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, Subsidiaries and (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (w) $100,000,000 plus (x) $1,000,000,000 when taken together with Investments outstanding the Applicable Equity Amount at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if to the Borrower shall be in compliance with extent the Consolidated Senior Secured Leverage TestDebt to Consolidated EBITDA Ratio for the Test Period is not greater than 4.25 to 1.00, both before and after giving effect, on a Pro Forma Basis Basis, to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time);
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in fixed income assets by XXXX consistent with customary practices of portfolio management on the ordinary course part of business in connection with Settlementsso-called “captive” insurance companies of comparable size and scope of activities as XXXX;
(v) other Investments, thatwhich, at when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a) from the time each such Investment is madeClosing Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by Section 10.6(c) and (iii) all dividends paid pursuant to Section 10.6(c), would shall not exceed the sum of an amount equal to (x) $750,000,000 150,000,000 plus (y) if the Borrower shall be in compliance with Applicable Equity Amount at the time such dividends are paid plus (z) to the extent the Consolidated Senior Secured Leverage TestDebt to Consolidated EBITDA Ratio is not greater than 4.25 to 1.00, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) at the Applicable Equity Amount at time such timeInvestment is made;
(w) advances, loans and extensions of credit made by the Borrower or any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary in respect of Permitted Intercompany Indebtedness; provided that the aggregate amount of advances, loans and extensions of credit made by Credit Parties to Restricted Subsidiaries that are not Credit Parties under this clause (w) shall not exceed $100,000,000 at any time outstanding;
(x) Investments consisting of purchases and acquisitions of assets and services in connection with any transaction permitted by Section 10.3the ordinary course of business; and
(xy) Investments consisting of licensing of intellectual property pursuant to joint marketing arrangements with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.
Appears in 2 contracts
Samples: Credit Agreement (Dollar General Corp), Credit Agreement (Dollar General Corp)
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to make any Investment except:
(a) extensions of trade credit and asset purchases of assets and services (including purchases of inventory, supplies and materials) in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were made;
(c) loans and advances to officers, directors directors, employees and employees consultants of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash cash) and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000993,000;
(di) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective date hereof as set forth on Schedule 10.5, (ii) Investments existing on the Closing Date of the Borrower or any Subsidiary in any other Subsidiary and (iii) any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateset forth on Schedule 10.5;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdingsthe Borrower (or any direct or indirect parent thereof);
(g) Investments (i) by the Borrower in any Guarantor or by any Guarantor in the Borrower, (aii) by any Restricted Subsidiary that is not a Guarantor in the Borrower or any other Restricted Subsidiary, and (iii) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties Guarantor in any Restricted Subsidiary that is not a Credit PartyGuarantor, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value Fair Market Value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would is made in an aggregate amount pursuant to this Section 10. 5(g)(iii) not to exceed the sum of (xA) the greater of $1,000,000,000993,000 or ten percent (10%) of Consolidated Total Assets (measured as of the date such Investment is made based upon the financial statements most recently available prior to such date), when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (zB) the Applicable Equity Amount at such time and (iiiC) by Credit Parties to the extent not otherwise included in the determination of the Applicable Equity Amount, an amount equal to any Restricted Subsidiary that is not a Credit Party so long as repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment is part (which amount shall not exceed the amount of a series such Investment valued at the Fair Market Value of simultaneous Investments such Investment at the time such Investment was made) (it being understood that to the extent any Investment made pursuant to this Section 10.5(g)(iii) was made by Restricted Subsidiaries using the Applicable Equity Amount, then the amounts referred to in other Restricted Subsidiaries that result in clause (C) shall, to the proceeds extent of the initial Investment being invested in one or more Credit Parties;original usage of the Applicable Equity Amount, be deemed to reconstitute such amounts).
(h) Investments constituting Permitted AcquisitionsAcquisitions or Industry Investments;
(i) Investments (including but not limited to (i) minority Minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties, and (iv) Permitted Acquisitions), in each case valued at the fair market value Fair Market Value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (iSection 10.5(i) that, at the time each such Investment is made, would not exceed the sum of (xA) the greater of (1) $1,000,000,000 when taken together with Investments outstanding at 1,987,000 or (2) twenty percent (20%) of Consolidated Total Assets (measured as of the date such time in reliance on Section 10.5(g)(ii)(xInvestment is made based upon the financial statements most recently available prior to such date) plus (yB) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Equity Amount at such time plus (zC) without duplication to the extent not otherwise included in the determination of any amount that increased the JV Distribution Applicable Equity Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value Fair Market Value of such Investment at the time such Investment was made) plus (aait being understood that to the extent any Investment made pursuant to this Section 10.5(i) was made by using the Applicable Equity Amount at such time;
Amount, then the amounts referred to in the clause (jC) Investments constituting non-cash proceeds of Dispositions of assets shall, to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan original usage of the Borrower (or any direct or indirect parent thereofApplicable Equity Amount, be deemed to reconstitute such amounts);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of ; provided that the Borrower foregoing limits shall not apply during the period in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of businesswhich, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits may be made pursuant to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.this
Appears in 2 contracts
Samples: Credit Agreement (KKR Financial Holdings LLC), Credit Agreement (KKR Financial Holdings LLC)
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries to make any Investment except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were made;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Original Closing Date as set forth on Schedule 10.5 to the Original Credit Agreement and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant set forth on Schedule 10.5 to legally binding written commitments in existence on, the 2014 July Repricing Effective DateOriginal Credit Agreement;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Original Closing Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000750,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 750,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time);
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 600,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such timeAmount;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;; and
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.
Appears in 2 contracts
Samples: Credit Agreement (First Data Corp), Credit Agreement (First Data Corp)
Limitation on Investments. The Borrower will notLoans and Advances. Make any advance, and will not permit 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 (all of the Restricted Subsidiaries foregoing being herein collectively referred to make as "Investments"), any Investment Person, except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madein Cash Equivalents;
(c) loans and advances to officers, directors and employees of the Borrower (such Person or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, entertainment and relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred expenses in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant for Holdings and its Subsidiaries not to this subclause (ii), when valued exceed $250,000 at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the any one time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Partiesoutstanding;
(hd) Investments constituting Permitted Acquisitionsby Holdings in its Subsidiaries which are or become Guarantors and investments by such Subsidiaries which are or become Guarantors in Holdings and in other Subsidiaries of Holdings which are or become Guarantors;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(ze) Investments by any Credit Party Holdings in any Restricted the Real Estate Subsidiary that is not a Credit Party in an aggregate amount not to exceed $5,000,000 plus amounts necessary to maintain and operate the fair market value real property and improvements thereon owned by the Real Estate Subsidiary;
(f) Investments in Unqualified Subsidiaries of Holdings not to exceed $20,000,000 in the aggregate;
(g) Investments constituting Permitted Business Acquisitions so long as, after giving effect to the consummation of the transactions contemplated by each Permitted Business Acquisition and the Loans, and the loans to be made and the Letters of Credit to be issued in connection with the Corporate Credit Agreement, the sum of (i) the cash and Cash Equivalents then held by Holdings and (ii) an amount equal to the difference between (A) the aggregate Commitments under the Corporate Credit Agreement, the aggregate Commitments and the aggregate Investor Commitments under the Equipment Lease Participation Agreements in effect at such time and (B) the Aggregate Outstanding Extensions of Credit under the Corporate Credit Agreement, the Available Commitments and the Available Investor Commitments under the Equipment Lease Participation Agreements at such time, equals at least $20,000,000;
(h) Investments or acquisitions by Holdings or its Subsidiaries in (i) up to 50% of the shares of capital stock, partnership interests, joint venture interests, limited liability company interests or other similar equity interests in, a Person (other than a Subsidiary), or (ii) loans or advances to a Person (other than a Subsidiary), provided that the aggregate amount of all dividends such loans, advances, investments or acquisitions does not exceed $25,000,000 in any fiscal year;
(i) Loans to employees, officers and other distributions received directors of Holdings and its Subsidiaries to acquire shares of capital stock of Holdings not to exceed $20,000,000; and
(j) the purchase by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness DateTIDES Trust of the TIDES Debentures, as contemplated under the TIDES Declaration of Trust.
Appears in 2 contracts
Samples: Guarantee (Hanover Compression Inc), Guarantee (Hanover Compressor Co /)
Limitation on Investments. The Borrower will notMake or hold any Investment, and will not permit any of the Restricted Subsidiaries to make any Investment except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were made;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit such grant) and deposits, prepayments and other credits to suppliers made in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors or in connection with the bankruptcy or reorganization of suppliers or customers or in settlement of delinquent obligations of, or other disputes with, suppliers and customers, and other credits to suppliers in the ordinary course of business;
(ob) Investments in assets that were Cash Equivalents at the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practicestime such Investments were made;
(pc) advances Investments arising in connection with the incurrence of payroll payments to employees in the ordinary course of businessIndebtedness, Liens, fundamental changes, Dispositions, Restricted Payments and sale/leaseback transactions permitted by Sections 6.1, 6.2, 6.3, 6.4, 6.5 and 6.9, respectively;
(qd) Guarantee Obligations Investments (other than those relating to the incurrence of Indebtedness permitted by clause (c)) by (i) any NFE Group Member in the Borrower or any Restricted Subsidiary of leases Guarantor, (ii) any NFE Group Member in any Non-Guarantor Subsidiary not to exceed $35,000,000 and (ii) any Excluded Subsidiary in any other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of businessExcluded Subsidiary;
(re) Investments held by a Person acquired (including by way of merger or consolidation) after in an aggregate amount, when taken together with the Original Closing Date otherwise in accordance with Investments previously made pursuant this Section 10.5 6.6(e), not to exceed $10,000,000;
(f) extensions of credit or loans to, or the acquisition or purchase of Capital Stock of, any entity that is a party to any lease, charter or other contract with respect to the use or hire of vessels by any NFE Group Member, to the extent the Indebtedness incurred by such counterparty pursuant to such extension of credit or loan is used by such counterparty to finance the purchase, lease, improvement, development, construction, remanufacturing, refurbishment, handling and repositioning, maintenance or repair of assets that are used in the use or hire of vessels by any NFE Group Member pursuant to such contract;
(g) Investments were existing on the Closing Date by any NFE Group Member in any other NFE Group Member and any modification, renewal or extension thereof; provided that the amount of any Investment permitted pursuant to this Section 6.6(g) is not made in contemplation increased from the amount of such Investment on the Closing Date except (A) by capitalized amounts related to unpaid accrued interest and premium, (B) pursuant to the terms of such Investment as of the Closing Date or (C) as otherwise permitted by this Section 6.6;
(h) promissory notes and other non-cash consideration received in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidationDispositions permitted by Section 6.4;
(si) Investments in Hedge Agreements permitted by Section 10.1Permitted Acquisitions;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.
Appears in 2 contracts
Samples: Credit Agreement (New Fortress Energy LLC), Credit Agreement (New Fortress Energy LLC)
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to (i) purchase or acquire (including pursuant to any merger, consolidation or amalgamation with a person that is not a Wholly owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of any other Person, (ii) make any Investment loans or advances to or guarantees of the Indebtedness of any other person, or (iii) purchase or otherwise acquire (in one transaction or a series of related transactions) (x) all or substantially all of the property and assets or business of another Person or (y) assets constituting a business unit, line of business or division of such Person (each, an “Investment”), except:
(a) extensions of trade credit and asset purchases of assets and services (including purchases of inventory, supplies and materials) in the ordinary course of business;
(b) Investments in assets that were constituted Permitted Investments when at the time such Investments were made;
(c) loans and advances to officers, directors directors, employees and employees consultants of the Borrower (or any direct or indirect parent thereof) or any of its Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents Equity Interests of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents Equity Interests shall be contributed to the Borrower in cash cash) and (iii) for purposes not described in the foregoing subclauses (i) and i)and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(di) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Closing Date as set forth on Schedule 10.5(d), (ii) Investments existing on the Closing Date of the Borrower or any Subsidiary in any other Subsidiary and (iii) any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made set forth on Schedule 10.5(d) (other than pursuant to legally binding written commitments an increase as required by the terms of any such Investment as in existence on, on the 2014 July Repricing Effective Closing Date and set forth on Schedule 10.5(d) as of the Closing Date);
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of HoldingsQualified Equity Interests;
(g) Investments (i) by the Borrower in any Guarantor or by any Guarantor in the Borrower, (aii) by any Restricted Subsidiary that is not a Guarantor in the Borrower or any other Restricted Subsidiary, and (iii) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties Guarantor in any Restricted Subsidiary that is not a Credit PartyGuarantor, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value Fair Market Value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was is made, in an aggregate amount outstanding pursuant to this Section 10.5(g)(iii) that, at the time such Investment is made, would not exceed the sum of (xA) the greater of $1,000,000,00050,000,000 and 5.0% of Adjusted Consolidated Net Tangible Assets (measured as of the date such Investment is made based upon the financial statements most recently available prior to such date), when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x(B) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Equity Amount at such time plus and (zC) to the extent not otherwise included in the determination of the Applicable Equity Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount shall not exceed the amount of such Investment valued at the Fair Market Value of such Investment at the time such Investment was made) (it being understood that to the extent any Investment made pursuant to this Section 10.5(g)(iii) was made by using the Applicable Equity Amount, then the amounts referred to in clause (C) shall, to the extent of the original usage of the Applicable Equity Amount, be deemed to reconstitute such amounts);
(h) Investments constituting Permitted Acquisitions; provided that the aggregate amount of Permitted Acquisition Consideration of such Permitted Acquisitions made or provided by the Borrower or any Subsidiary Guarantor to acquire any Restricted Subsidiary that does not become a Subsidiary Guarantor or merge, consolidate or amalgamate into the Borrower or a Subsidiary Guarantor or any assets that shall not, immediately after giving effect to such Permitted Acquisition, be owned by the Borrower or a Subsidiary Guarantor, shall not exceed the sum of (i) the greater of $50,000,000 and 5.0% of Adjusted Consolidated Net Tangible Assets after giving effect to such Permitted Acquisitions, (ii) the Applicable Equity Amount at such time and (iii) by Credit Parties to the extent not otherwise included in the determination of the Applicable Equity Amount, an amount equal to any Restricted Subsidiary that is not a Credit Party so long as repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment is part (which amount shall not exceed the amount of a series such Investment valued at the Fair Market Value of simultaneous Investments such Investment at the time such Investment was made) (it being understood that to the extent any Investment made pursuant to this Section 10.5(h) was made by Restricted Subsidiaries using the Applicable Equity Amount, then the amounts referred to in other Restricted Subsidiaries that result in this clause (iii) shall, to the proceeds extent of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitionsoriginal usage of the Applicable Equity Amount, be deemed to reconstitute such amounts);
(i) Investments (including but not limited to (i) minority Minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties, (iv) Permitted Acquisitions and (v) Investments in respect of royalty trusts and master limited partnerships), in each case valued at the fair market value Fair Market Value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount outstanding pursuant to this clause (iSection 10.5(i) that, at the time each such Investment is made, would not to exceed the sum of (xA) the greater of (1) $1,000,000,000 when taken together with Investments outstanding at 75,000,000 and (2) 7.5% of Adjusted Consolidated Net Tangible Assets (measured as of the date such time in reliance on Section 10.5(g)(ii)(xInvestment is made based upon the financial statements most recently available prior to such date) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aaB) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.plus
Appears in 2 contracts
Samples: Credit Agreement (Athlon Energy Inc.), Credit Agreement (Athlon Energy Inc.)
Limitation on Investments. The Borrower Borrowers will not, and will not permit any of the Restricted Subsidiaries to Subsidiary to, make any Investment exceptin any Person except for:
(a) extensions of trade credit and asset purchases Investments held in the ordinary course form of businesscash and Cash Equivalents;
(b) Investments that were existing as of the Closing Date and, with respect to any Investment (other than Permitted Investments when such Investments were madeJoint Ventures) with value of $2,000,000 or more as of the Closing Date, set forth in Schedule 6.10;
(c) loans and advances receivables owing to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) Company or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are to suppliers, in each case if created, acquired or made in cash, the amount ordinary course of such loans business and advances used to acquire such Stock payable or Stock Equivalents shall be contributed to the Borrower dischargeable in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000accordance with customary trade terms;
(d) Investments existing onin and loans to any Credit Party; provided, or made pursuant to legally binding written commitments in existence onhowever, that the 2014 July Repricing Effective Date and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of all Investments in and loans to any Investment Canadian Credit Party by the U.S. Credit Parties made pursuant after the Closing Date (other than Investments made with proceeds of any Permitted Securitization Transaction that are used to this clause (dprepay Canadian Swingline Loans or Canadian Revolving Loans or to cash collateralize Bankers’ Acceptance Advances in accordance with the terms of Section 2.10(b)(vi)(C)) is shall not increased exceed U.S.$20,000,000 at any one time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateoutstanding;
(e) loans and advances (other than advances of sales commissions) to employees (other than officers or directors) in an aggregate amount not to exceed U.S.$4,000,000 at any time outstanding;
(f) Investments received in connection with the bankruptcy or reorganization of suppliers or and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(og) Permitted Acquisitions, including the SCC Acquisition;
(h) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practicesPermitted Joint Ventures;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(ri) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 Hedging Agreements to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Hedging Agreements are permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3hereby; and
(xj) additional Investments consisting of licensing of intellectual property with other Persons in a nature not contemplated by the ordinary course of business;
foregoing subsections (ya) Investments constituting contributions or other dispositions of through (i); provided that the aggregate outstanding amount at any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value time of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since such Investments made after the Initial Effectiveness DateClosing Date pursuant to this subsection shall not, at any time, exceed U.S.$15,000,000. Investments shall be valued at cost, less any return of capital thereon.
Appears in 2 contracts
Samples: Credit Agreement (Rock-Tenn CO), Credit Agreement (Rock-Tenn CO)
Limitation on Investments. The Borrower Holdings will not, and will not permit any of the Restricted Subsidiaries to to, make any advance, loan, extensions of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets of, or make any other Investment in, any Person, except:
(a) extensions of trade credit and asset purchases, including purchases of transponders, orbital slots and ground equipment, in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madeInvestments;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) Holdings or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the an aggregate principal amount at any time outstanding pursuant to under this subclause clause (iiic) shall not exceed exceeding $10,000,00010.0 million;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Date date hereof and listed on Schedule 6.05 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of any Investment made all Investments pursuant to this clause (d) is not increased at any time above the amount of such Investment Investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Datedate hereof;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investmentbusiness;
(f) Investments to the extent that payment for such Investments is made solely with Stock or Stock Equivalents capital stock of Holdings;
(g) Investments in (i) any Guarantor (aprovided that such entity was a Guarantor or Wholly Owned Subsidiary immediately prior to such Investment) by or the Canadian Borrower or any Restricted Subsidiary and (ii) in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries Guarantors (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in entity was a Subsidiary that is not a Credit Party is immediately prior to such Investment), in the form case of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicablethis clause (g)(ii), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the an aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant not to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum greater of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before 175.0 million and after giving effect, on a Pro Forma Basis to the making 3.0% of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time Total Assets of Holdings and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Partiesits Subsidiaries;
(h) Investments constituting Permitted Acquisitionsof up to $500.0 million at any one time outstanding to the extent such investments relate to the construction or acquisition of up to four satellites (including Satellites constructed or acquired to replace Satellites, including existing Satellites), any of which can be pursuant to a condosat transaction;
(i) Investments constituting Permitted Acquisitions not to exceed (including but x) $500.0 million since the Closing Date, plus (y) up to an additional $500.0 million to the extent funded with the cash proceeds from the issuance of Qualified Capital Stock issued by Holdings (other than the Equity Financing and other than Permitted Cure Securities and provided that such amounts do not limited to increase the Applicable Amount);
(j) (i) minority Investments (including Investments in Minority Investments and Investments in Unrestricted Subsidiaries, ) and (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons entities that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case case, as valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, (A) in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (zwithout duplication) without duplication of any amount that increased the JV Distribution Amount, (y) an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus and/or (aaB) in the case of clause (ii) only, in any amount that, at the time such Investment is made, would be permitted to be expended as a Capital Expenditure under Section 6.11 of the Senior Secured Credit Facilities, to the extent that (x) such joint venture owns an interest in assets the addition of which would have been a Capital Expenditure if acquired or constructed, and owned, directly by the Canadian Borrower or a Restricted Subsidiary, (y) the Applicable Equity Amount at ability of the Canadian Borrower and/or one or more Restricted Subsidiaries to receive cash flows attributable to its interest therein substantially as they would if they directly owned such timeasset or portion thereof is not prohibited by contract, applicable law or otherwise and (z) the permitted amount of Capital Expenditures in Section 6.11 of the Senior Secured Credit Facilities is reduced by the amount of such investment;
(jk) Investments constituting non-cash proceeds of Dispositions sales, transfers and other dispositions of assets to the extent permitted by Section 10.46.04(b) or (c);
(kl) Investments made to repurchase or retire Stock or Stock Equivalents common stock of the Canadian Borrower (or any direct or indirect parent thereof to make payments to Holdings to enable it to retire common stock of Holdings) owned by any present, future or former employee, officer, director or consultant pursuant to any employee or any stock ownership plan or plan, key employee stock ownership plan plan, director benefit plan, consulting agreement or employment agreement of the Borrower (Holdings or any direct or indirect parent thereofRestricted Subsidiary when taken together with dividends made in accordance with Section 6.06(b);
(l) Investments consisting of dividends permitted under Section 10.6, does not exceed $15.0 million;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent Investments permitted to be made to such parent in accordance with under Section 10.66.06;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of businessSwap Agreements entered into for bona fide (non-speculative) business purposes;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practiceswhich are guarantees permitted under Section 6.01;
(p) advances Investments in Subsidiaries of payroll payments Holdings existing on the Closing Date in Brazil and the Isle of Man not to employees exceed $30.0 million in the ordinary course of business;aggregate pending such Subsidiaries becoming Guarantors in accordance with Section 5.12 or a determination being made that such Subsidiaries will not become Guarantors; and
(q) Guarantee Obligations Investments in Subsidiaries of Holdings in Hong Kong existing on the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed $275.0 million plus any Third Party Indemnity Payment in the fair market value aggregate at any time outstanding for the purpose of all dividends enabling such Subsidiaries to acquire, construct, launch and insure the replacement satellite to the satellite known as Telstar 10 and to operate Telstar 10 and such replacement and to pay taxes, provided that while such Investments are outstanding such Subsidiaries shall not incur or permit to exist any Indebtedness other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since than the Initial Effectiveness DateT10R Sale Leaseback and any Capitalized Lease Obligations relating to Telstar 10 or such replacement satellite.
Appears in 2 contracts
Samples: Senior Subordinated Bridge Loan Agreement (Loral Space & Communications Inc.), Senior Bridge Loan Agreement (Loral Space & Communications Inc.)
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to (i) purchase or acquire (including pursuant to any merger, consolidation or amalgamation with a person that is not a Wholly owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of any other Person, (ii) make any Investment loans or advances to or guarantees of the Indebtedness of any other Person, or (iii) purchase or otherwise acquire (in one transaction or a series of related transactions) (x) all or substantially all of the property and assets or business of another Person or (y) assets constituting a business unit, line of business or division of such Person (each, an “Investment”), except:
(a) extensions of trade credit and asset purchases of assets and services (including purchases of inventory, supplies and materials) in the ordinary course of business;
(b) Investments in assets that were constituted Permitted Investments when at the time such Investments were made;
(c) loans and advances to officers, directors directors, employees and employees consultants of the Borrower (or any direct or indirect parent thereof) or any of its Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents Equity Interests of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents Equity Interests shall be contributed to the Borrower in cash cash) and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,00020,000,000;
(d) (i) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Closing Date as set forth on Schedule 10.5(d), (ii) Investments existing on the Closing Date of the Borrower or any Subsidiary in any other Subsidiary and (iii) any extensions, modifications, replacements, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made as of the Closing Date (other than (a) pursuant to legally binding written commitments an increase as required by the terms of any such Investment as in existence on, on the 2014 July Repricing Effective DateClosing Date or (b) as otherwise permitted under this Section 10.5);
(e) Investments received any Investment acquired by the Borrower or any of its Restricted Subsidiaries: (i) in exchange for any other Investment, accounts receivable or endorsements for collection or deposit held by the Borrower or any such Restricted Subsidiary in each case in connection with the bankruptcy or as a result of a bankruptcy, workout, reorganization of suppliers or customers and in recapitalization of, or settlement of delinquent obligations ofaccounts and disputes with or judgments against, and the issuer of such other disputes withInvestment or accounts receivable (including any trade creditor or customer), customers arising (ii) in satisfaction of judgments against other Persons, (iii) as a result of a foreclosure by the ordinary course Borrower or any of business or upon foreclosure its Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured InvestmentInvestment in default or (iv) as a result of the settlement, compromise or resolution of litigation, arbitration or other disputes with Persons who are not Affiliates;
(f) Investments to the extent that payment for such Investments is made with Stock Qualified Equity Interests of the Borrower or Stock Equivalents of Holdingsa Parent Entity;
(g) Investments (i) by the Borrower in any Guarantor or by any Guarantor in the Borrower, (aii) by any Restricted Subsidiary that is not a Guarantor in the Borrower or any other Restricted Subsidiary; provided, that Investments by any Restricted Subsidiary that is not a Guarantor in the Borrower or any Guarantor shall be subordinated in right of payment to the Loans, and (iii) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties Guarantor in any Restricted Subsidiary that is not a Credit PartyGuarantor; provided, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date outstanding pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faithSection 10.5(g)(iii) of each such Investment at the time each such Investment was is made, would not exceed the sum of (xA) the greater of $1,000,000,00045,000,000 and 3.0% of Consolidated Total Assets (measured as of the date such Investment is made based upon the financial statements most recently available prior to such date), when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (zB) the Applicable Equity Amount at such time and (iiiC) by Credit Parties to the extent not otherwise included in the determination of the Applicable Equity Amount, an amount equal to any Restricted Subsidiary that is not a Credit Party so long as repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment is part of a series of simultaneous Investments described in this Section 10.5(g)(iii) (it being understood that to the extent any Investment made pursuant to this Section 10.5(g)(iii) was made by Restricted Subsidiaries using the Applicable Equity Amount, then the amounts referred to in other Restricted Subsidiaries that result in clause (C) shall, to the proceeds extent of the initial Investment being invested in one or more Credit Partiesoriginal usage of the Applicable Equity Amount, be deemed to reconstitute such amounts);
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted SubsidiariesInvestments, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value Fair Market Value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount outstanding pursuant to this clause (iSection 10.5(i) that, at the time each such Investment is made, would not to exceed the sum of (xA) the greater of (1) $1,000,000,000 when taken together with Investments outstanding at 60,000,000 and (2) 4.0% of Consolidated Total Assets (measured as of the date such time in reliance on Section 10.5(g)(ii)(xInvestment is made based upon the financial statements most recently available prior to such date) plus (yB) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Equity Amount at such time plus (zC) without duplication to the extent not otherwise included in the determination of any amount that increased the JV Distribution Applicable Equity Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value Fair Market Value of such Investment at the time such Investment was made) plus (aait being understood that to the extent any Investment made pursuant to this Section 10.5(i) was made by using the Applicable Equity Amount at Amount, then the amounts referred to in the clause (C) shall, to the extent of the original usage of the Applicable Equity Amount, as applicable, be deemed to reconstitute such timeamounts);
(j) Investments made at any such time during which, immediately after giving effect to the making of any such Investment on a Pro Forma Basis, (i) no Event of Default shall have occurred and be continuing and (ii) Liquidity is not less than 10.0% of the then effective Borrowing Base;
(k) Investments constituting promissory notes and other non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.410.4 or any other disposition of assets not constituting a Disposition;
(kl) Investments made to repurchase or retire Stock or Stock Equivalents Equity Interests of the Borrower or any direct or indirect parent thereof owned by the Sponsor or its Affiliates or any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(lm) Investments consisting of dividends Restricted Payments permitted under Section 10.610.6 (other than Section 10.6(c) and 10.6(f)(viii));
(mn) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends Restricted Payments to the extent permitted to be made to such parent in accordance with Section 10.610.6(b), (f) or (i);
(no) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(op) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practicespractices or industry practice;
(pq) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of business;
(qr) Guarantee Obligations guarantee obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Capitalized Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(rs) Investments held by a Person acquired (including by way of merger merger, amalgamation or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger merger, amalgamation or consolidation;
(st) Investments in Industry Investments and in interests in additional Oil and Gas Properties and gas gathering systems related thereto or Investments related to Farm-Out Agreements, Farm-In Agreements, joint operating, joint venture, joint development or other area of mutual interest agreements, other similar industry investments, gathering systems, pipelines or other similar oil and gas exploration and production business arrangements whether through direct ownership or ownership through a joint venture or similar arrangement;
(u) to the extent constituting Investments, the Transactions;
(v) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before 10.1 and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such timeSection 10.10;
(w) Investments (excluding loans and advances made in connection with any transaction permitted lieu of Restricted Payments pursuant to and limited by Section 10.3; and7.05(n) above) consisting of Indebtedness, fundamental changes, Dispositions and payments permitted under Sections 10.1 (other than Sections 10.1(d)(iii) and (g)(ii)), 10.3 (other than Sections 10.3(a), (c) and (g)), 10.4 (other than Section 10.4(d)) and 10.7;
(x) in the case of the Borrower and its Restricted Subsidiaries, Investments consisting of intercompany Indebtedness having a term not exceeding 364 days (inclusive of any roll over or extension of terms) and made in the ordinary course of business; provided that, in the case of any such Indebtedness owing by the Borrower or a Guarantor to a Restricted Subsidiary that is not a Guarantor, such Indebtedness shall, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences, be subordinated to the Obligations pursuant to the Intercompany Note; provided further that in the case of any such Indebtedness owing by a Restricted Subsidiary that is not a Guarantor to the Borrower or a Guarantor, such Indebtedness shall be evidenced by the Intercompany Note pledged in favor of the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Agreement;
(y) Investments resulting from pledges and deposits under clauses (d) and (e) of the definition of “Permitted Liens” and clauses (j), (o), (w) and (y) of Section 10.2;
(z) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or the relevant Restricted Subsidiary;
(aa) Investments consisting of licensing of intellectual property pursuant to joint marketing arrangements with other Persons in the ordinary course of business;
(ybb) Investments constituting contributions made in the ordinary course of business in connection with obtaining, maintaining or other dispositions renewing client contacts and loans or advances made to distributors in the ordinary course of any Foreign Subsidiary to another Foreign Subsidiary; andbusiness;
(zcc) Investments made by any Credit Party in any Restricted Subsidiary that is not a Credit Party to the extent that such Investments are financed with the proceeds received by such Restricted Subsidiary from an Investment in such Restricted Subsidiary permitted by this Agreement;
(dd) Investments consisting of the contribution of Equity Interests of any Foreign Subsidiary or FSHCO to any other Foreign Subsidiary or FSHCO;
(ee) Investments in Unrestricted Subsidiaries having an aggregate amount fair market value, taken together with all other Investments made pursuant to this Section 10.2(ee) that are at the time outstanding, without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of marketable securities (until such proceeds are converted to cash equivalents) not to exceed the greater of (1) $37,500,000 and (2) 2.5% of Consolidated Total Assets at the time of such Investment (with the fair market value of all dividends each Investment being measured at the time made and other distributions received by Credit Parties from without giving effect to subsequent changes in value); and
(ff) any Investment constituting a Disposition or transfer of any asset between or among the Borrower and/or its Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Dateas a substantially concurrent interim Disposition or transfer in connection with an Investment otherwise permitted pursuant to clauses (a) through (ee) above or in connection with a transaction permitted by Section 10.3 or in connection with a Disposition permitted pursuant to Section 10.4.
Appears in 2 contracts
Samples: Credit Agreement (Vine Resources Inc.), Credit Agreement (Vine Resources Inc.)
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to (i) purchase or acquire (including pursuant to any merger, consolidation or amalgamation with a person that is not a Wholly owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of any other Person, (ii) make any Investment loans or advances to or guarantees of the Indebtedness of any other Person, or (iii) purchase or otherwise acquire (in one transaction or a series of related transactions) (x) all or substantially all of the property and assets or business of another Person or (y) assets constituting a business unit, line of business or division of such Person (each, an “Investment”), except:
(a) extensions of trade credit and asset purchases of assets and services (including purchases of inventory, supplies and materials) in the ordinary course of business;
(b) Investments in assets that were constituted Permitted Investments when at the time such Investments were made;
(c) loans and advances to officers, directors directors, employees and employees consultants of the Borrower (or any direct or indirect parent thereof) or any of its Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents Equity Interests of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents Equity Interests shall be contributed to the Borrower in cash cash) and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,00020,000,000;
(di) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Closing Date as set forth on Schedule 10.5(d), (ii) Investments existing on the Closing Date of the Borrower or any Subsidiary in any other Subsidiary and (iii) any extensions, modifications, replacements, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made as of the Closing Date (other than (a) pursuant to legally binding written commitments an increase as required by the terms of any such Investment as in existence on, on the 2014 July Repricing Effective DateClosing Date or (b) as otherwise permitted under this Section 10.5);
(e) Investments received any Investment acquired by the Borrower or any of its Restricted Subsidiaries: (i) in exchange for any other Investment, accounts receivable or endorsements for collection or deposit held by the Borrower or any such Restricted Subsidiary in each case in connection with the bankruptcy or as a result of a bankruptcy, workout, reorganization of suppliers or customers and in recapitalization of, or settlement of delinquent obligations ofaccounts and disputes with or judgments against, and the issuer of such other disputes withInvestment or accounts receivable (including any trade creditor or customer), customers arising (ii) in satisfaction of judgments against other Persons, (iii) as a result of a foreclosure by the ordinary course Borrower or any of business or upon foreclosure its Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured InvestmentInvestment in default or (iv) as a result of the settlement, compromise or resolution of litigation, arbitration or other disputes with Persons who are not Affiliates;
(f) Investments to the extent that payment for such Investments is made with Stock Qualified Equity Interests of the Borrower or Stock Equivalents of Holdingsa Parent Entity;
(g) Investments (i) by the Borrower in any Guarantor or by any Guarantor in the Borrower, (aii) by any Restricted Subsidiary that is not a Guarantor in the Borrower or any other Restricted Subsidiary; provided, that Investments by any Restricted Subsidiary that is not a Guarantor in the Borrower or any Guarantor shall be subordinated in right of payment to the Loans, and (iii) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties Guarantor in any Restricted Subsidiary that is not a Credit PartyGuarantor; provided, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date outstanding pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faithSection 10.5(g)(iii) of each such Investment at the time each such Investment was is made, would not exceed the sum of (xA) the greater of $1,000,000,00045,000,000 and 3.0% of Consolidated Total Assets (measured as of the date such Investment is made based upon the financial statements most recently available prior to such date), when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (zB) the Applicable Equity Amount at such time and (iiiC) by Credit Parties to the extent not otherwise included in the determination of the Applicable Equity Amount, an amount equal to any Restricted Subsidiary that is not a Credit Party so long as repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment is part of a series of simultaneous Investments described in this Section 10.5(g)(iii) (it being understood that to the extent any Investment made pursuant to this Section 10.5(g)(iii) was made by Restricted Subsidiaries using the Applicable Equity Amount, then the amounts referred to in other Restricted Subsidiaries that result in clause (C) shall, to the proceeds extent of the initial Investment being invested in one or more Credit Partiesoriginal usage of the Applicable Equity Amount, be deemed to reconstitute such amounts);
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted SubsidiariesInvestments, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value Fair Market Value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount outstanding pursuant to this clause (iSection 10.5(i) that, at the time each such Investment is made, would not to exceed the sum of (xA) the greater of (1) $1,000,000,000 when taken together with Investments outstanding at 60,000,000 and (2) 4.0% of Consolidated Total Assets (measured as of the date such time in reliance on Section 10.5(g)(ii)(xInvestment is made based upon the financial statements most recently available prior to such date) plus (yB) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Equity Amount at such time plus (zC) without duplication to the extent not otherwise included in the determination of any amount that increased the JV Distribution Applicable Equity Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value Fair Market Value of such Investment at the time such Investment was made) plus (aait being understood that to the extent any Investment made pursuant to this Section 10.5(i) was made by using the Applicable Equity Amount at Amount, then the amounts referred to in the clause (C) shall, to the extent of the original usage of the Applicable Equity Amount, as applicable, be deemed to reconstitute such timeamounts);
(j) Investments made at any such time during which, immediately after giving effect to the making of any such Investment on a Pro Forma Basis, (i) no Event of Default shall have occurred and be continuing and (ii) Liquidity is not less than 10.0% of the then effective Borrowing Base;
(k) Investments constituting promissory notes and other non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.410.4 or any other disposition of assets not constituting a Disposition;
(kl) Investments made to repurchase or retire Stock or Stock Equivalents Equity Interests of the Borrower or any direct or indirect parent thereof owned by the Sponsor or its Affiliates or any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(lm) Investments consisting of dividends Restricted Payments permitted under Section 10.610.6 (other than Section 10.6(c) and 10.6(f)(viii));
(mn) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends Restricted Payments to the extent permitted to be made to such parent in accordance with Section 10.610.6(b), (f) or (i);
(no) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(op) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practicespractices or industry practice;
(pq) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of business;
(qr) Guarantee Obligations guarantee obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Capitalized Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(rs) Investments held by a Person acquired (including by way of merger merger, amalgamation or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger merger, amalgamation or consolidation;
(st) Investments in Industry Investments and in interests in additional Oil and Gas Properties and gas gathering systems related thereto or Investments related to Farm-Out Agreements, Farm-In Agreements, joint operating, joint venture, joint development or other area of mutual interest agreements, other similar industry investments, gathering systems, pipelines or other similar oil and gas exploration and production business arrangements whether through direct ownership or ownership through a joint venture or similar arrangement;
(u) to the extent constituting Investments, the Transactions;
(v) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before 10.1 and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such timeSection 10.10;
(w) Investments (excluding loans and advances made in connection with any transaction permitted lieu of Restricted Payments pursuant to and limited by Section 10.3; and7.05(n) above) consisting of Indebtedness, fundamental changes, Dispositions and payments permitted under Sections 10.1 (other than Sections 10.1(d)(iii) and (g)(ii)), 10.3 (other than Sections 10.3(a), (c) and (g)), 10.4 (other than Section 10.4(d)) and 10.7;
(x) in the case of the Borrower and its Restricted Subsidiaries, Investments consisting of intercompany Indebtedness having a term not exceeding 364 days (inclusive of any roll over or extension of terms) and made in the ordinary course of business; provided that, in the case of any such Indebtedness owing by the Borrower or a Guarantor to a Restricted Subsidiary that is not a Guarantor, such Indebtedness shall, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences, be subordinated to the Obligations pursuant to the Intercompany Note; provided further that in the case of any such Indebtedness owing by a Restricted Subsidiary that is not a Guarantor to the Borrower or a Guarantor, such Indebtedness shall be evidenced by the Intercompany Note pledged in favor of the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Agreement;
(y) Investments resulting from pledges and deposits under clauses (d) and (e) of the definition of “Permitted Liens” and clauses (j), (o), (w) and (y) of Section 10.2;
(z) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or the relevant Restricted Subsidiary;
(aa) Investments consisting of licensing of intellectual property pursuant to joint marketing arrangements with other Persons in the ordinary course of business;
(ybb) Investments constituting contributions made in the ordinary course of business in connection with obtaining, maintaining or other dispositions renewing client contacts and loans or advances made to distributors in the ordinary course of any Foreign Subsidiary to another Foreign Subsidiary; andbusiness;
(zcc) Investments made by any Credit Party in any Restricted Subsidiary that is not a Credit Party to the extent that such Investments are financed with the proceeds received by such Restricted Subsidiary from an Investment in such Restricted Subsidiary permitted by this Agreement;
(dd) Investments consisting of the contribution of Equity Interests of any Foreign Subsidiary or FSHCO to any other Foreign Subsidiary or FSHCO;
(ee) Investments in Unrestricted Subsidiaries having an aggregate amount fair market value, taken together with all other Investments made pursuant to this Section 10.2(ee) that are at the time outstanding, without giving effect to the sale of an Unrestricted Subsidiary to the extent the proceeds of such sale do not consist of marketable securities (until such proceeds are converted to cash equivalents) not to exceed the greater of (1) $37,500,000 and (2) 2.5% of Consolidated Total Assets at the time of such Investment (with the fair market value of all dividends each Investment being measured at the time made and other distributions received by Credit Parties from without giving effect to subsequent changes in value); and
(ff) any Investment constituting a Disposition or transfer of any asset between or among the Borrower and/or its Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Dateas a substantially concurrent interim Disposition or transfer in connection with an Investment otherwise permitted pursuant to clauses (a) through (ee) above or in connection with a transaction permitted by Section 10.3 or in connection with a Disposition permitted pursuant to Section 10.4.
Appears in 2 contracts
Samples: Credit Agreement (Vine Resources Inc.), Credit Agreement (Vine Resources Inc.)
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to (i) purchase or acquire (including pursuant to any merger, consolidation or amalgamation with a person that is not a Wholly owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of any other Person, (ii) make any Investment loans or advances to or guarantees of the Indebtedness of any other Person, or (iii) purchase or otherwise acquire (in one transaction or a series of related transactions) (x) all or substantially all of the property and assets or business of another Person or (y) assets constituting a business unit, line of business or division of such Person (each, an “Investment”), except:
(a) extensions of trade credit and asset purchases of assets and services (including purchases of inventory, supplies and materials) in the ordinary course of business;
(b) Investments in assets that were constituted Permitted Investments when at the time such Investments were made;
(c) loans and advances to officers, directors directors, employees and employees consultants of the Borrower (or any direct or indirect parent thereofParent Entity) or any of its Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents Equity Interests of the Borrower (or any direct or indirect parent thereof)Parent Entity; provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents Equity Interests shall be contributed to the Borrower in cash cash) and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(di) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Closing Date as set forth on Schedule 10.5(d), (ii) Investments existing on the Closing Date of the Borrower or any Subsidiary in any other Subsidiary and (iii) any extensions, modifications, replacements, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made as of the Closing Date (other than (a) pursuant to legally binding written commitments an increase as required by the terms of any such Investment as in existence on, on the 2014 July Repricing Effective DateClosing Date or (b) as otherwise permitted under this Section 10.5);
(e) Investments received any Investment acquired by the Borrower or any of its Restricted Subsidiaries: (i) in exchange for any other Investment, accounts receivable or endorsements for collection or deposit held by the Borrower or any such Restricted Subsidiary in each case in connection with the bankruptcy or as a result of a bankruptcy, workout, reorganization of suppliers or customers and in recapitalization of, or settlement of delinquent obligations ofaccounts and disputes with or judgments against, and the issuer of such other disputes withInvestment or accounts receivable (including any trade creditor or customer), customers arising (ii) in satisfaction of judgments against other Persons, (iii) as a result of a foreclosure by the ordinary course Borrower or any of business or upon foreclosure its Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured InvestmentInvestment in default or (iv) as a result of the settlement, compromise or resolution of litigation, arbitration or other disputes with Persons who are not Affiliates;
(f) Investments to the extent that payment for such Investments is made with Stock Qualified Equity Interests of the Borrower or Stock Equivalents of Holdingsa Parent Entity;
(g) Investments (i) by the Borrower in any Guarantor or by any Guarantor in the Borrower, (aii) by any Restricted Subsidiary that is not a Guarantor in the Borrower or any other Restricted Subsidiary; provided, that Investments by any Restricted Subsidiary that is not a Guarantor in the Borrower or any Guarantor shall be subordinated in right of payment to the Loans, and (iii) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties Guarantor in any Restricted Subsidiary that is not a Credit PartyGuarantor; provided, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date outstanding pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faithSection 10.5(g)(iii) of each such Investment at the time each such Investment was is made, would not exceed the sum of (xA) the greater of $1,000,000,00025,000,000 and 1.25% of Consolidated Total Assets (measured as of the date such Investment is made based upon the financial statements most recently available prior to such date), when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(xB) plus (y) if the Borrower so long as no Event of Default shall have occurred and be in compliance with the Senior Secured Leverage Testcontinuing or would result therefrom, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iiiC) by Credit Parties to the extent not otherwise included in the determination of the Applicable Equity Amount, an amount equal to any Restricted Subsidiary that is not a Credit Party so long as repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment is part of a series of simultaneous Investments described in this Section 10.5(g)(iii) (it being understood that to the extent any Investment made pursuant to this Section 10.5(g)(iii) was made by Restricted Subsidiaries using the Applicable Equity Amount, then the amounts referred to in other Restricted Subsidiaries that result in clause (C) shall, to the proceeds extent of the initial Investment being invested in one or more Credit Partiesoriginal usage of the Applicable Equity Amount, be deemed to reconstitute such amounts);
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted SubsidiariesInvestments, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value Fair Market Value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount outstanding pursuant to this clause (iSection 10.5(i) that, at the time each such Investment is made, would not to exceed the sum of (xA) the greater of (1) $1,000,000,000 when taken together with Investments outstanding at 65,000,000 and (2) 3.5% of Consolidated Total Assets (measured as of the date such time in reliance on Section 10.5(g)(ii)(xInvestment is made based upon the financial statements most recently available prior to such date) plus (yB) if the Borrower so long as no Event of Default shall have occurred and be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investmentcontinuing or would result therefrom, the Applicable Equity Amount at such time plus (zC) without duplication to the extent not otherwise included in the determination of any amount that increased the JV Distribution Applicable Equity Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value Fair Market Value of such Investment at the time such Investment was made) plus (aait being understood that to the extent any Investment made pursuant to this Section 10.5(i) was made by using the Applicable Equity Amount at Amount, then the amounts referred to in the clause (C) shall, to the extent of the original usage of the Applicable Equity Amount, as applicable, be deemed to reconstitute such timeamounts);
(j) Investments made at any such time in an amount not to exceed Available Free Cash Flow during which, immediately after giving effect to the making of any such Investment on a Pro Forma Basis, (i) no Default or Event of Default shall have occurred and be continuing, (ii) the Available Commitment exceeds 25% of the lesser of (A) the Borrowing Base and (B) the Total Commitments, (iii) no Borrowing Base Deficiency exists, (iv) the Consolidated Total Net Leverage Ratio shall be less than 2.25:1.00, (v) the Existing Unsecured Notes have either (X) been repaid and discharged in full or (Y) been refinanced such that the maturity date of the Existing Unsecured Notes (or any Permitted Refinancing Indebtedness in respect thereof) is at least 91 days after the Latest Maturity Date, and (vi) the Borrower has delivered at least one quarterly compliance certificate in accordance with Section 9.1(c) demonstrating a Consolidated Total Net Leverage Ratio of less than 2.00:1.00;
(k) Investments constituting promissory notes and other non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.410.4 or any other disposition of assets not constituting a Disposition;
(kl) Investments made to repurchase or retire Stock or Stock Equivalents Equity Interests of the Borrower or any direct or indirect parent thereof Parent Entity owned by the Sponsor or its Affiliates or any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereofParent Entity); provided that such Investment is otherwise permitted by Section 10.6 (other than Section 10.6(c) and 10.6(f)(viii));
(lm) Investments consisting of dividends Restricted Payments permitted under Section 10.610.6 (other than Section 10.6(c) and 10.6(f)(viii));
(mn) loans and advances to any direct or indirect parent of the Borrower Parent Entity in lieu of, and not in excess of the amount of, dividends Restricted Payments to the extent permitted to be made to such parent in accordance with Section 10.610.6(b), (f) or (i);
(no) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(op) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practicespractices or industry practice;
(pq) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of business;
(qr) Guarantee Obligations guarantee obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Capitalized Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(rs) Investments held by a Person acquired (including by way of merger merger, amalgamation or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger merger, amalgamation or consolidation;
(st) Investments in Industry Investments and in interests in additional Oil and Gas Properties and gas gathering systems, gas processing plants and pipeline systems and any related infrastructure to any thereof related thereto or Investments related to Farm-Out Agreements, Farm-In Agreements, joint operating, joint venture (other than a joint venture in the form of a partnership, corporation, or limited liability company), joint development or other area of mutual interest agreements, other similar industry investments, gathering systems, pipelines or other similar oil and gas exploration and production business arrangements whether through direct ownership or ownership through a joint venture or similar arrangement (other than a joint venture in the form of a partnership, corporation, or limited liability company);
(u) to the extent constituting Investments, the Transactions;
(v) Investments in Hedge Agreements permitted by each of Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before 10.1 and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such timeSection 10.10;
(w) Investments (excluding loans and advances made in connection with any transaction permitted lieu of Restricted Payments pursuant to and limited by Section 10.3; and10.5(n)) consisting of Indebtedness, fundamental changes, Dispositions and payments permitted under Sections 10.1 (other than Sections 10.1(d)(iii) and (g)(ii)), 10.3 (other than Sections 10.3(a), (c) and (g)), 10.4 (other than Section 10.4(d)) and 10.7;
(x) in the case of the Borrower and its Restricted Subsidiaries, Investments consisting of intercompany Indebtedness having a term not exceeding 364 days (inclusive of any roll over or extension of terms) and made in the ordinary course of business; provided that, in the case of any such Indebtedness owing by the Borrower or a Guarantor to a Restricted Subsidiary that is not a Guarantor, such Indebtedness shall, to the extent permitted by Requirements of Law and not giving rise to material adverse tax consequences, be subordinated to the Obligations pursuant to the Intercompany Note; provided further that in the case of any such Indebtedness owing by a Restricted Subsidiary that is not a Guarantor to the Borrower or a Guarantor, such Indebtedness shall be evidenced by the Intercompany Note pledged in favor of the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Agreement;
(y) Investments resulting from pledges and deposits under clauses (d) and (e) of the definition of “Permitted Liens” and clauses (j), (o) and (y) of Section 10.2;
(z) advances in the form of a prepayment of expenses, so long as such expenses are being paid in accordance with customary trade terms of the Borrower or the relevant Restricted Subsidiary;
(aa) Investments consisting of licensing of intellectual property pursuant to joint marketing arrangements with other Persons in the ordinary course of business;
(ybb) Investments constituting contributions made in the ordinary course of business in connection with obtaining, maintaining or renewing client contacts and loans or advances made to distributors in the ordinary course of business;
(cc) [reserved;]
(dd) [reserved;]
(ee) Investments in Unrestricted Subsidiaries having an aggregate fair market value, taken together with all other dispositions Investments made pursuant to this Section 10.2(ee) that are at the time outstanding, without giving effect to the sale of any Foreign an Unrestricted Subsidiary to another Foreign Subsidiary; and
the extent the proceeds of such sale do not consist of marketable securities (zuntil such proceeds are converted to cash equivalents (including Permitted Investments)) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the greater of (1) $20,000,000 and (2) 1.0% of Consolidated Total Assets at the time of such Investment (with the fair market value of all dividends each Investment being measured at the time made and other distributions received by Credit Parties from without giving effect to subsequent changes in value); and
(ff) any Investment constituting a Disposition or transfer of any asset between or among the Borrower and/or its Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Dateas a substantially concurrent interim Disposition or transfer in connection with an Investment otherwise permitted pursuant to clauses (a) through (ee) above or in connection with a transaction permitted by Section 10.3 or in connection with a Disposition permitted pursuant to Section 10.4.
Appears in 2 contracts
Samples: Credit Agreement (Vine Energy Inc.), Credit Agreement (Vine Energy Inc.)
Limitation on Investments. The Parent Borrower will not, and will not permit any of the Restricted Subsidiaries to to, make any Investment except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madeInvestments;
(c) loans and advances to officers, directors and employees of the Parent Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries or to Physicians with whom the Parent Borrower or any of its Subsidiaries have contractual relationships (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Parent Borrower (or any direct or indirect parent thereof); provided that, ) to the extent such loans and advances are made in cash, that the amount of such loans and advances used to acquire such Stock are directly or Stock Equivalents shall be indirectly contributed to the Parent Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the , in an aggregate principal amount outstanding pursuant to this subclause (iii) shall not to exceed $10,000,00020,000,000;
(d) Investments existing on, or made contemplated as of, the Original Closing Date and either (x) constituting Indebtedness that is permitted pursuant to legally binding written commitments in existence on, Section 10.1(g)(ii) or (y) listed on Schedule 10.5 to the 2014 July Repricing Effective Date Original Credit Agreement and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of any Investment made all Investments pursuant to this clause (d) is not increased at any time above the amount of such Investment Investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Original Closing Date;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Parent Borrower or any Restricted Subsidiary in any Credit PartySubsidiary Borrower, (b) between or among 1993 Indenture Restricted Subsidiaries, (c) between or among Restricted Subsidiaries that are not Credit Parties, neither Subsidiary Borrowers nor 1993 Indenture Restricted Subsidiaries and (cd) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Parent Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance advance) and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) (a) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent (b) by 1993 Indenture Restricted Subsidiaries in any Restricted Subsidiary that the aggregate amount of all Investments made on is not a 1993 Indenture Restricted Subsidiary or after the 2014 July Repricing Effective Date pursuant to this subclause (ii)c) by any Restricted Subsidiary that is neither a Credit Party nor a 1993 Indenture Restricted Subsidiary in any 1993 Indenture Restricted Subsidiary, when in each case valued at the fair market value (determined by the Parent Borrower acting in good faith) of each such Investment at the time each such Investment was made, in an aggregate amount pursuant to this subclause (ii) that, at the time each such Investment is made, would not exceed the sum of (x) the excess of (A) $1,000,000,000, when taken together with 1,500,000,000 over (B) the amount of Investments outstanding at such time in reliance on Section 10.5(i)(x10.5(i)(ii)(x) at such time plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Partiestime;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including including, but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, Subsidiaries and (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case case, as valued at the fair market value (determined by the Parent Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) the excess of (A) $1,000,000,000 when taken together with 1,500,000,000 over (B) the amount of Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) at such time, plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time);
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Parent Borrower or any direct or indirect parent thereof owned by any employee or any employee stock ownership plan or key employee stock ownership plan of the Parent Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances advance to any direct or indirect parent of the Parent Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Parent Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments by 1993 Indenture Restricted Subsidiaries of accounts receivable and related assets in Hedge Agreements permitted by Section 10.1ABL Entities;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments by the Parent Borrower in the ordinary course European Subsidiary Borrower (as defined in the CF Agreement) arising as a result of business any payment made by the Parent Borrower in connection with Settlementsrespect of European Tranche Term Loans (as defined in the CF Agreement) pursuant to Section 5.2(a)(ii) of the CF Agreement;
(v) other Investments, that, Investments by the Parent Borrower and the Restricted Subsidiaries in any joint venture (regardless of the form of legal entity) or Restricted Subsidiary in an aggregate amount at the any time each such Investment is made, would outstanding not to exceed the sum of (xA) $750,000,000 600,000,000 plus (yB) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable JV Distribution Amount plus (zC) without duplication of any amount that increased the Applicable Equity Amount JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (C) shall not exceed the amount of such Investment valued at the fair market value of such timeInvestment at the time such Investment was made); provided, that the aggregate amount of Investments made in reliance on subclause (B) or (C) above by Credit Parties shall not exceed the aggregate of the amounts referred to in such subclauses that were directly or indirectly received by Credit Parties;
(w) Investments in connection with any transaction permitted redemption by Section 10.3; andHealthtrust, or transfer to Healthtrust or the Parent Borrower, of shares of Stock of Healthtrust held by Columbia SDH and Epic Properties;
(x) Investments consisting intercompany transfers of licensing creditor positions in respect of intellectual property with other Persons in the ordinary course of business;Indebtedness outstanding pursuant to Sections 10.1(a), 10.1(g)(ii) or 10.1(i); and
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary Indebtedness outstanding pursuant to another Foreign Subsidiary; and
(zSection 10.1(a)(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.10.1(i)(z);
Appears in 2 contracts
Samples: Credit Agreement (Hca Inc/Tn), Credit Agreement (Hca Inc/Tn)
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to make any Investment except:
(a) extensions of trade credit and credit, asset purchases (including purchases of inventory, supplies, materials and equipment) and the licensing or contribution of intellectual property pursuant to joint marketing arrangements, original equipment manufacturer arrangements or development agreements with other Persons, in each case in the ordinary course of business;
(b) Investments that were Permitted Investments in cash or Cash Equivalents when such Investments were made;
(c) loans and advances to officers, directors managers, directors, employees, consultants and employees independent contractors of the Borrower (or any direct or indirect parent thereof) or any Subsidiary of its Subsidiaries the Borrower (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower Holdings (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash cash) and (iii) for purposes not described in the foregoing subclauses clauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause clause (iii) shall not exceed $10,000,00025,000,000 at any one time outstanding;
(d) Investments (i) contemplated by the Plan or to consummate the Transactions and (ii) existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Closing Date and, to the extent such Investments exceed $5,000,000, set forth on Schedule 10.5 and any extensionssupplement, renewals amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or reinvestments extension thereof, so long as only to the extent that the amount of any Investment made pursuant to this clause (dd)(ii) is does not increased at any time above exceed the amount of such Investment existing onset forth on Schedule 10.5 (except by an amount equal to the unpaid accrued interest and premium thereon plus any unused commitments plus amounts paid in respect of fees, premiums, costs and expenses incurred in connection with such supplement, amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateextension or as otherwise permitted hereunder);
(e) Investments received any Investment acquired by the Borrower or any Restricted Subsidiary (i) in exchange for any other Investment or accounts receivable held by the Borrower or any such Restricted Subsidiary in connection with the bankruptcy or reorganization as a result of suppliers a bankruptcy, workout, reorganization, or customers and in recapitalization of, or settlement of delinquent obligations ofaccounts or disputes with or judgments against, and other disputes withthe issuer, customers arising in obligor or borrower of such original Investment or accounts receivable, (ii) as a result of a foreclosure by the ordinary course of business Borrower or upon foreclosure any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured InvestmentInvestment in default or (iii) as a result of the settlement, compromise or resolution of litigation, arbitration or other disputes with Persons who are not Affiliates or in satisfaction or judgments against other Persons;
(f) Investments to the extent that payment for such Investments is made with (i) Stock or Stock Equivalents (other than Disqualified Stock) of Holdingsthe Borrower (or any direct or indirect parent thereof) or (ii) the proceeds from the issuance of Stock or Stock Equivalents (other than Disqualified Stock, any sale or issuance to any Subsidiary and any issuance applied pursuant to Section 10.6(a) or Section 10.6(b)(i)) of the Borrower (or any direct or indirect parent thereof); provided that such Stock or Stock Equivalents or proceeds of such Stock or Stock Equivalents will not increase the Available Equity Amount;
(g) Investments (i) (aother than in the form of direct or indirect transfers or Dispositions of intellectual property from a Credit Party to a non-Credit Party) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary or any Person that is not a Credit Partywill, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each upon such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on become a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit PartiesSubsidiary;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to constituting (i) minority Minority Investments and Investments in Unrestricted Subsidiaries, Subsidiaries and (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount at any one time outstanding pursuant to this clause (i) that, at the time each such Investment is made, would not exceed an amount equal to the sum greater of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus 160,000,000 and (y) if 20% of Consolidated EBITDA for the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, most recently ended Test Period (calculated on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such timeBasis);
(j) Investments constituting non-cash proceeds of received from Dispositions of assets pursuant to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof) in an aggregate amount, when combined with distributions made pursuant to Section 10.6(b), not to exceed the limitations set forth in such Section;
(l) Investments consisting of dividends or resulting from Indebtedness, Liens, Restricted Payments, fundamental changes and Dispositions permitted under by Section 10.610.1 (other than Sections 10.1(d), 10.1(e) and 10.1(g)(ii)), 10.2, 10.3 (other than Section 10.3(j)), 10.4 (other than Section 10.4(d)), 10.6 (other than Section 10.6(f)), 10.7 or 10.8, as applicable;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends Restricted Payments to the extent permitted to be made to such parent in accordance with Section 10.6; provided that the aggregate amount of such loans and advances shall reduce the ability of the Borrower and the Restricted Subsidiaries to make Restricted Payments under the applicable clauses of Section 10.6 by such amount;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger merger, amalgamation or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger merger, amalgamation or consolidation;
(s) Investments in Hedge Hedging Agreements permitted by Section 10.1;
(t) Investments in or by a Receivables Entity or a Securitization Subsidiary arising out of of, or in connection with with, any Permitted Receivables Financing or Qualified Securitization Financing, as applicable; provided that any such Investment in a Receivables Entity or a Securitization Subsidiary is in the form of a contribution of additional Receivables Facility Assets or Securitization Assets, as applicable, or as equity;
(u) Investments in the ordinary course consisting of business in connection with Settlementsdeposits of cash and Cash Equivalents as collateral support permitted under Section 10.2;
(v) other Investments, that, Investments not to exceed an amount equal to (x) the Available Equity Amount at the time each such Investment is Investments are made plus (y) the Available Amount at the time such Investments are made, provided that in respect of any Investments made in reliance of clause (ii) of the definition of “Available Amount”, no Event of Default shall have occurred and be continuing or would result therefrom;
(w) other Investments in an amount at any one time outstanding not to exceed an amount equal to the sum greater of (x) $750,000,000 plus 160,000,000 and (y) if 20% of Consolidated EBITDA for the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, most recently ended Test Period (calculated on a Pro Forma Basis, ); provided that up to an amount equal to the making greater of such Investment, (i) $80,000,000 and (ii) 10% of Consolidated EBITDA for the Applicable Amount plus most recently ended Test Period (zcalculated on a Pro Forma Basis) may be made in the Applicable Equity Amount at such timeform of Disposition of intellectual property by a Credit Party to a Restricted Subsidiary that is not a Credit Party;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing purchases and acquisitions of intellectual property with other Persons assets and services in the ordinary course of business;
(y) Investments constituting contributions in the ordinary course of business consisting of Article 3 endorsements for collection or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; anddeposit and Article 4 customary trade arrangements with customers consistent with past practice;
(z) Investments made as a part of, or in connection with or to otherwise fund the Transactions;
(aa) contributions in connection with compensation arrangements to a “rabbi” trust for the benefit of employees, directors, partners, members, consultants, independent contractors or other service providers or other grantor trust subject to claims of creditors in the case of a bankruptcy of the Borrower or any of its Restricted Subsidiaries;
(bb) Investments relating to pension trusts;
(cc) Investments in Similar Business in an amount at any one time outstanding not to exceed an amount equal to the greater of (x) $160,000,000 and (y) 20% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis);
(dd) Investments in connection with Permitted Reorganizations;
(ee) Investments in deposit accounts, commodities and securities accounts opened in the ordinary course of business;
(ff) Investments solely to the extent such Investments reflect an increase in the value of Investments otherwise permitted under this Agreement;
(gg) Investments in prepaid expenses, negotiable instruments held for collection and lease, utility and workers compensation, performance and similar deposits entered into as a result of the operations of the business in the ordinary course of business;
(hh) Term Loans repurchased by the Borrower or a Restricted Subsidiary pursuant to and in accordance with Section 13.6(g);
(ii) other Investments in an unlimited amount, provided that the Borrower shall be in compliance on a Pro Forma Basis with a Consolidated Total Net Leverage Ratio not greater than 2.8 to 1.0; and
(jj) Investments made in connection with a Permitted Change of Control. Notwithstanding the foregoing, no Investment consisting of or resulting from any transfer or other Disposition of any intellectual property by a Credit Party in any Restricted to a Subsidiary that is not a Credit Party may be made except pursuant to (i) Section 10.5(l) (solely in an aggregate amount not respect of Dispositions permitted by Section 10.4(e) or (g)) or (ii) the proviso to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness DateSection 10.5(w).
Appears in 2 contracts
Samples: Term Loan Credit Agreement (Avaya Holdings Corp.), Term Loan Credit Agreement (Avaya Holdings Corp.)
Limitation on Investments. The Borrower Neither Holdings, nor the Company will, nor will not, and will not they permit any of the Restricted Subsidiaries to to, make any advance, loan, extensions of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets of, or make any other Investment in, any Person, except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madeInvestments;
(c) loans and advances to officers, directors and employees of the Holdings, a Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower Holdings (or any direct or indirect parent thereof); provided that, ) to the extent such loans and advances are made in cash, that the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be are contributed to the Borrower Company in cash and (iii) for purposes not described in the foregoing subclauses clauses (i) and (ii); provided that the , in an aggregate principal amount outstanding pursuant not to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence oncontemplated as of, the 2014 July Repricing Effective Date date hereof and listed on Schedule 10.5 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of any Investment made all Investments pursuant to this clause (d) is not increased at any time above the amount of such Investment Investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Datedate hereof;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investmentbusiness;
(f) Investments to the extent that payment for such Investments is made solely with Stock or Stock Equivalents of HoldingsHoldings or the Company;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit PartyGuarantor or the Company, (bii) between or among in Restricted Subsidiaries that are not Credit PartiesGuarantors, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect an aggregate amount pursuant to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), this clause (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) 25,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and time, (iii) by Credit Parties in any Restricted Subsidiary Subsidiaries that is are not a Credit Party Guarantors so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit PartiesGuarantors, (iv) constituting Lux Intercompany Loans, (v) in the Lux Borrower so long as the proceeds of Investments pursuant to this clause (v) are used to pay (x) interest on, or principal of, the Tranche B-1 Term Loans made to the Lux Borrower, (y) operating expenses of the Lux Borrower incurred in the ordinary course of business (including taxes) or (z) other customary corporate overhead costs and expenses of the Lux Borrower and (vi) in Restricted Subsidiaries that have provided a Guarantee (but are not Guarantors) in an aggregate amount not to exceed $10,000,000;
(h) Investments constituting Permitted Acquisitions;
(i) (i) Investments (including but not limited to (i) minority Investments in Minority Investments and Investments in Unrestricted Subsidiaries, ) and (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons entities that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case case, as valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, (A) in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (zy) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus and/or (aaB) in the case of clause (ii) only, in any amount that, at the time such Investment is made, would be permitted to be expended as a Capital Expenditure under Section 10.10, to the extent that (x) such joint venture owns an interest in assets the addition of which would have been a Capital Expenditure if acquired or constructed, and owned, directly by the Company or a Restricted Subsidiary, and (y) the Applicable Equity Amount at ability of the Company and/or one or more Restricted Subsidiaries to receive cash flows attributable to its interest therein substantially as they would if they directly owned such timeasset or portion thereof is not prohibited by contract, applicable law or otherwise;
(j) Investments constituting non-cash proceeds of Dispositions sales, transfers and other dispositions of assets to the extent permitted by Section 10.410.4(b) or (c);
(k) Investments made to repurchase or retire Stock of Holdings or Stock Equivalents of the Borrower or any direct or indirect parent thereof Company owned by any employee or any stock ownership plan or key employee stock ownership plan of Holdings or the Borrower Company;
(l) Investments permitted under Section 10.6; and
(m) loans and advance to Holdings (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to Holdings (or such parent parent) in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.
Appears in 2 contracts
Samples: Credit Agreement (Avago Technologies Manufacturing (Singapore) Pte. Ltd.), Credit Agreement (Avago Technologies LTD)
Limitation on Investments. The Parent Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to make any Investment except:
(a) extensions of trade credit and credit, asset purchases (including purchases of inventory, supplies, materials and equipment) and the licensing or contribution of intellectual property pursuant to joint marketing arrangements, original equipment manufacturer arrangements or development agreements with other Persons, in each case in the ordinary course of business;
(b) Investments that were Permitted Investments in cash or Cash Equivalents when such Investments were made;
(c) loans and advances to officers, directors managers, directors, employees, consultants and employees independent contractors of the Parent Borrower (or any direct or indirect parent thereof) or any Subsidiary of its Subsidiaries the Parent Borrower (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower Holdings (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Parent Borrower in cash cash) and (iii) for purposes not described in the foregoing subclauses clauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause clause (iii) shall not exceed $10,000,00025,000,000 at any one time outstanding;
(d) Investments (i) contemplated by the Plan or to consummate the Transactions and (ii) existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Closing Date and, to the extent such Investments exceed $5,000,000, set forth on Schedule 10.5 and any extensionssupplement, renewals amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or reinvestments extension thereof, so long as only to the extent that the amount of any Investment made pursuant to this clause (dd)(ii) is does not increased at any time above exceed the amount of such Investment existing onset forth on Schedule 10.5 (except by an amount equal to the unpaid accrued interest and premium thereon plus any unused commitments plus amounts paid in respect of fees, premiums, costs and expenses incurred in connection with such supplement, amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateextension or as otherwise permitted hereunder);
(e) Investments received any Investment acquired by the Parent Borrower or any Restricted Subsidiary (i) in exchange for any other Investment or accounts receivable held by the Parent Borrower or any such Restricted Subsidiary in connection with the bankruptcy or reorganization as a result of suppliers a bankruptcy, workout, reorganization, or customers and in recapitalization of, or settlement of delinquent obligations ofaccounts or disputes with or judgments against, and other disputes withthe issuer, customers arising in obligor or borrower of such original Investment or accounts receivable, (ii) as a result of a foreclosure by the ordinary course of business Parent Borrower or upon foreclosure any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured InvestmentInvestment in default or (iii) as a result of the settlement, compromise or resolution of litigation, arbitration or other disputes with Persons who are not Affiliates or in satisfaction or judgments against other Persons;
(f) Investments to the extent that payment for such Investments is made with (i) Stock or Stock Equivalents (other than Disqualified Stock) of Holdingsthe Parent Borrower (or any direct or indirect parent thereof) or (ii) the proceeds from the issuance of Stock or Stock Equivalents (other than Disqualified Stock, any sale or issuance to any Subsidiary and any issuance applied pursuant to Section 10.6(a) or Section 10.6(b)(i)) of the Parent Borrower (or any direct or indirect parent thereof); provided that such Stock or Stock Equivalents or proceeds of such Stock or Stock Equivalents will not increase the Available Equity Amount;
(g) Investments (i) (aother than in the form of direct or indirect transfers or Dispositions of intellectual property from a U.S. Credit Party to a non-U.S. Credit Party) by the Parent Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Parent Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary or any Person that is not a Credit Partywill, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each upon such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on become a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit PartiesSubsidiary;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to constituting (i) minority Minority Investments and Investments in Unrestricted Subsidiaries, Subsidiaries and (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Parent Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount at any one time outstanding pursuant to this clause (i) that, at the time each such Investment is made, would not exceed an amount equal to the sum greater of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus 160,000,000 and (y) if 20% of Consolidated EBITDA for the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, most recently ended Test Period (calculated on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such timeBasis);
(j) Investments constituting non-cash proceeds of received from Dispositions of assets pursuant to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Parent Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Parent Borrower (or any direct or indirect parent thereof) in an aggregate amount, when combined with distributions made pursuant to Section 10.6(b), not to exceed the limitations set forth in such Section;
(l) Investments consisting of dividends or resulting from Indebtedness, Liens, Restricted Payments, fundamental changes and Dispositions permitted under by Section 10.610.1 (other than Sections 10.1(d), 10.1(e) and 10.1(g)(ii)), 10.2, 10.3 (other than Section 10.3(j)), 10.4 (other than Section 10.4(d)), 10.6 (other than Section 10.6(f)), 10.7 or 10.8, as applicable;
(m) loans and advances to any direct or indirect parent of the Parent Borrower in lieu of, and not in excess of the amount of, dividends Restricted Payments to the extent permitted to be made to such parent in accordance with Section 10.6; provided that the aggregate amount of such loans and advances shall reduce the ability of the Parent Borrower and the Restricted Subsidiaries to make Restricted Payments under the applicable clauses of Section 10.6 by such amount;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of business;
(q) Guarantee Obligations of the Parent Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger merger, amalgamation or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger merger, amalgamation or consolidation;
(s) Investments in Hedge Hedging Agreements permitted by Section 10.1;
(t) Investments in or by a Receivables Entity or a Securitization Subsidiary arising out of of, or in connection with with, any Permitted Receivables Financing or Qualified Securitization Financing, as applicable; provided that any such Investment in a Receivables Entity or a Securitization Subsidiary is in the form of a contribution of additional Receivables Facility Assets or Securitization Assets, as applicable, or as equity;
(u) Investments in the ordinary course consisting of business in connection with Settlementsdeposits of cash and Cash Equivalents as collateral support permitted under Section 10.2;
(v) other Investments, that, Investments not to exceed an amount equal to the Available Equity Amount at the time each such Investment is Investments are made, would ;
(w) other Investments in an amount at any one time outstanding not to exceed an amount equal to the sum greater of (x) $750,000,000 plus 160,000,000 and (y) if 20% of Consolidated EBITDA for the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, most recently ended Test Period (calculated on a Pro Forma Basis, ); provided that up to an amount equal to the making greater of such Investment, (i) $80,000,000 and (ii) 10% of Consolidated EBITDA for the Applicable Amount plus most recently ended Test Period (zcalculated on a Pro Forma Basis) may be made in the Applicable Equity Amount at such timeform of Disposition of intellectual property by a U.S. Credit Party to a Restricted Subsidiary that is not a U.S. Credit Party;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing purchases and acquisitions of intellectual property with other Persons assets and services in the ordinary course of business;
(y) Investments constituting contributions in the ordinary course of business consisting of Article 3 endorsements for collection or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; anddeposit and Article 4 customary trade arrangements with customers consistent with past practice;
(z) Investments made as a part of, or in connection with or to otherwise fund the Transactions;
(aa) contributions in connection with compensation arrangements to a “rabbi” trust for the benefit of employees, directors, partners, members, consultants, independent contractors or other service providers or other grantor trust subject to claims of creditors in the case of a bankruptcy of the Parent Borrower or any of its Restricted Subsidiaries;
(bb) Investments relating to pension trusts;
(cc) Investments in Similar Business in an amount at any one time outstanding not to exceed an amount equal to the greater of (x) $160,000,000 and (y) 20% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis);
(dd) Investments in connection with Permitted Reorganizations;
(ee) Investments in deposit accounts, commodities and securities accounts opened in the ordinary course of business;
(ff) Investments solely to the extent such Investments reflect an increase in the value of Investments otherwise permitted under this Agreement;
(gg) Investments in prepaid expenses, negotiable instruments held for collection and lease, utility and workers compensation, performance and similar deposits entered into as a result of the operations of the business in the ordinary course of business;
(hh) Term Loans repurchased by the Parent Borrower or a Restricted Subsidiary pursuant to and in accordance with Section 13.6(g) of the Term Loan Credit Agreement; and
(ii) other Investments in an unlimited amount, so long as the Payment Conditions are satisfied at the time of and after giving effect to the Investment. Notwithstanding the foregoing, no Investment consisting of or resulting from any transfer or other Disposition of any intellectual property by a U.S. Credit Party in any Restricted to a Subsidiary that is not a U.S. Credit Party may be made except pursuant to (i) Section 10.5(l) (solely in an aggregate amount not respect of Dispositions permitted by Section 10.4(e) or (g)) or (ii) the proviso to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness DateSection 10.5(w).
Appears in 2 contracts
Samples: Abl Credit Agreement (Avaya Holdings Corp.), Abl Credit Agreement (Avaya Holdings Corp.)
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries to make any Investment except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madeInvestments;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries or to Physicians with whom the Borrower or any of its Subsidiaries have contractual relationships (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, ) to the extent such loans and advances are made in cash, that the amount of such loans and advances used to acquire such Stock are directly or Stock Equivalents shall be indirectly contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the , in an aggregate principal amount outstanding pursuant to this subclause (iii) shall not to exceed $10,000,00020,000,000;
(d) Investments existing on, or made contemplated as of, the Closing Date and either (x) constituting Indebtedness that is permitted pursuant to legally binding written commitments in existence on, Section 10.1(g)(ii) or (y) listed on Schedule 10.5 to the 2014 July Repricing Effective Date Original Credit Agreement and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of any Investment made all Investments pursuant to this clause (d) is not increased at any time above the amount of such Investment Investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Closing Date;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) [reserved], (c) between or among 1993 Indenture Restricted Subsidiaries, (d) between or among Restricted Subsidiaries that are not neither Credit PartiesParties nor 1993 Indenture Restricted Subsidiaries, and (ce) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries and (provided that any such intercompany Investment in connection with cash management arrangements f) by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such any Restricted Subsidiary complies with Section 9.12 in any Restricted Subsidiary, provided that such Investment is used, directly or as a result of substantially concurrent transfers, to the extent applicable), repay intercompany Indebtedness owed to any Credit Party and (ii) (a) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent (b) by 1993 Indenture Restricted Subsidiaries in any Restricted Subsidiary that the aggregate amount of all Investments made on is not a 1993 Indenture Restricted Subsidiary or after the 2014 July Repricing Effective Date pursuant to this subclause (ii)c) by any Restricted Subsidiary that is neither a Credit Party nor a 1993 Indenture Restricted Subsidiary in any 1993 Indenture Restricted Subsidiary, when in each case valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, from and after the Second Restatement Effective Date, in an aggregate amount pursuant to this subclause (ii) that, at the time each such Investment is made, would not exceed the sum of (x) the excess of (A) the greater of (I) $1,000,000,000, when taken together with 3,000,000,000 and (II) 12% of Total Assets over (B) the amount of Investments outstanding at such time in reliance on Section 10.5(i)(x10.5(i)(ii)(x) at such time plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Partiestime;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, Subsidiaries and (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) from and after the Second Restatement Effective Date that, at the time each such Investment is made, would not exceed the sum of (x) the excess of (A) the greater of (I) $1,000,000,000 when taken together with 3,000,000,000 and (II) 12% of Total Assets over (B) the amount of Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) at such time, plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time);
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted permittednot prohibited by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any employee stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances advance to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted permittednot prohibited to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments by 1993 Indenture Restricted Subsidiaries of accounts receivable and related assets in Hedge Agreements permitted by Section 10.1ABL Entities;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments made in reliance on Section 10.5(g)(ii) or Section 10.5(i) (in each case, of the ordinary course of business in connection with SettlementsFirst Restated Credit Agreement) prior to the Second Restatement Date or committed to be made prior to the Second Restatement Effective Date;
(v) other Investments, that, Investments by the Borrower and the Restricted Subsidiaries in any joint venture (regardless of the form of legal entity) or Restricted Subsidiary in an aggregate amount at the any time each such Investment is made, would outstanding not to exceed the sum of (xA) $750,000,000 600,000,000 plus (yB) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable JV Distribution Amount plus (zC) without duplication of any amount that increased the Applicable Equity Amount JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (C) shall not exceed the amount of such Investment valued at the fair market value of such timeInvestment at the time such Investment was made); provided, that the aggregate amount of Investments made in reliance on subclause (B) or (C) above by the Credit Parties shall not exceed the aggregate of the amounts referred to in such subclauses that were directly or indirectly received by Credit Parties;
(w) Investments in connection with any transaction permitted redemption by Section 10.3; andHealthtrust, or transfer to Healthtrust or the Borrower, of shares of Stock of Healthtrust held by Columbia—SDH and Epic Properties;
(x) Investments consisting intercompany transfers of licensing creditor positions (i) in respect of intellectual property with Indebtedness outstanding pursuant to Sections 10.1(a), 10.1(g)(ii) or 10.1(i), and (ii) in respect of any other Persons intercompany Indebtedness; provided that the transfer of credit positions described in the ordinary course this clause (ii) is used, directly or as a result of businesssubstantially concurrent transfers, to repay intercompany Indebtedness owed to any Credit Party;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary Indebtedness outstanding pursuant to another Foreign SubsidiarySection 10.1(a)(z) and 10.1(i)(z); and
(z) other Investments by so long as the Consolidated Total Debt to Consolidated EBITDA Ratio for the most recently ended Test Period for which Section 9.1 Financials have been delivered is less than or equal to 4.25:1.00, determined on a Pro Forma Basis after giving effect to such Investment; provided that any Credit Party Investment in any a Person that is a Restricted Subsidiary that is not a Credit Party shall be in an aggregate amount not to exceed the fair market value form of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Datecash;.
Appears in 2 contracts
Samples: Joinder Agreement (HCA Healthcare, Inc.), Joinder Agreement (HCA Healthcare, Inc.)
Limitation on Investments. The Borrower will notMake any advance, and will not permit loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes, debentures or other debt securities of, or any assets constituting an ongoing business from, or make any other investment in, any other Person (all of the Restricted Subsidiaries to make any Investment foregoing, “Investments”), except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madein Cash Equivalents;
(c) loans and advances to officers, directors and employees Investments arising in connection with the incurrence of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advancesIndebtedness permitted by Section 7.2(b), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (ie) and (iik); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant loans and advances to legally binding written commitments in existence onemployees of the REIT, the 2014 July Repricing Effective Date Borrower or any Subsidiaries of the Borrower in the ordinary course of business (including, without limitation, for travel, entertainment and any extensionsrelocation expenses) in an aggregate amount for the REIT, renewals or reinvestments thereof, so long as the amount Borrower and Subsidiaries of any Investment made pursuant the Borrower not to this clause (d) is not increased exceed $500,000 at any one time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateoutstanding;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and (other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments than those relating to the extent that payment for such Investments is made with Stock or Stock Equivalents incurrence of Holdings;
(g) Investments (i) (aIndebtedness permitted by Section 7.7(c)) by the Group Members in the Borrower or any Restricted Subsidiary in any Credit Partyof the Borrower, provided that, (bx) between immediately prior to and after giving effect to such Investment, no Default or among Restricted Subsidiaries that are not Credit PartiesEvent of Default shall have occurred and be continuing, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if after giving pro forma effect to such Investment, the Borrower shall be in compliance with the Senior Secured Leverage Testprovisions of Section 7.1 hereof;
(f) REIT Permitted Investments and Investments in Sunset Xxxxxxx made prior to the Closing Date;
(g) Investments by the Borrower or any of its Subsidiaries, both before and consisting of Acquisitions; provided that the Administrative Agent shall have received a certificate of a Principal Financial Officer (i) certifying that after giving effectpro forma effect to such Acquisition, on a Pro Forma Basis the Total Revolving Extensions of Credit shall not exceed the Maximum Facility Availability, (ii) containing all information and calculations necessary, after giving pro forma effect to the making of such Investment, for determining pro forma compliance with the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time provisions of Section 7.1 hereof and (iii) by Credit Parties in any Restricted Subsidiary certifying that is not a Credit Party so long as immediately prior to and after giving effect to such Investment is part Acquisition, no Default or Event of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one Default shall have occurred or more Credit Parties;be continuing; and
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, otherwise permitted hereunder in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate principal amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date$2,500,000.
Appears in 2 contracts
Samples: Credit Agreement (Hudson Pacific Properties, Inc.), Credit Agreement (Hudson Pacific Properties, Inc.)
Limitation on Investments. The No Borrower will, and no Borrower will not, and will not permit any of the its respective Restricted Subsidiaries to to, make any Investment except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were made;
(c) loans and advances to officers, directors and employees of the Parent Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Parent Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Parent Borrower in cash cash) and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Restatement Effective Date Date, as set forth on Schedule 10.5 and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateset forth on Schedule 10.5;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower Holdings or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit PartiesParent Borrower;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.
Appears in 2 contracts
Samples: Credit Agreement (Laureate Education, Inc.), Credit Agreement (Laureate Education, Inc.)
Limitation on Investments. The Parent Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to make any Investment except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were mademade or Investments in Investment Grade Securities;
(c) loans and advances to officers, directors and employees of the Parent Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Parent Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Parent Borrower in cash cash) and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date date hereof as set forth on Schedule 10.5 and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateset forth on Schedule 10.5;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Parent Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Parent Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), Subsidiaries; (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Closing Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would is not exceed the sum in excess of (w) $25,000,000 plus (x) $1,000,000,000, when taken together with Investments outstanding the Applicable Equity Amount at such time in reliance on Section 10.5(i)(x) plus (y) if to the Borrower shall be in compliance with extent the Consolidated Senior Secured Leverage TestDebt to Consolidated EBITDA Ratio is not greater than 4.25 to 1.00, both before and after giving effect, on a Pro Forma Basis Basis, to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, Subsidiaries and (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Parent Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (w) $100,000,000 plus (x) $1,000,000,000 when taken together with Investments outstanding the Applicable Equity Amount at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if to the Borrower shall be in compliance with extent the Consolidated Senior Secured Leverage TestDebt to Consolidated EBITDA Ratio for the Test Period is not greater than 4.25 to 1.00, both before and after giving effect, on a Pro Forma Basis Basis, to the making of such Investment, the Applicable Amount at such time time; plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time);
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Parent Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Parent Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Parent Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Parent Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing[Reserved];
(u) Investments in fixed income assets by XXXX consistent with customary practices of portfolio management on the ordinary course part of business in connection with Settlementsso-called “captive” insurance companies of comparable size and scope of activities as XXXX;
(v) other Investments, thatwhich, at when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a) from the time each such Investment is madeClosing Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by Section 10.6(c) and (iii) all dividends paid pursuant to Section 10.6(c), would shall not exceed the sum of an amount equal to (x) $750,000,000 150,000,000 plus (y) if the Borrower shall be in compliance with Applicable Equity Amount at the time such dividends are paid plus (z) to the extent the Consolidated Senior Secured Leverage TestDebt to Consolidated EBITDA Ratio is not greater than 4.25 to 1.00, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) at the Applicable Equity Amount at time such timeInvestment is made;
(w) advances, loans and extensions of credit made by the Parent Borrower or any Restricted Subsidiary to the Parent Borrower or any other Restricted Subsidiary in respect of Permitted Intercompany Indebtedness; provided that the aggregate amount of advances, loans and extensions of credit made by Credit Parties to Restricted Subsidiaries that are not Credit Parties under this clause (w) shall not exceed $100,000,000 at any time outstanding;
(x) Investments consisting of purchases and acquisitions of assets and services in connection with any transaction permitted by Section 10.3the ordinary course of business; and
(xy) Investments consisting of licensing of intellectual property pursuant to joint marketing arrangements with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.
Appears in 2 contracts
Samples: Abl Credit Agreement (Dollar General Corp), Abl Credit Agreement (Dollar General Corp)
Limitation on Investments. The Borrower will notMake or hold any Investments, and will not permit any of the Restricted Subsidiaries to make any Investment except:
(a) extensions of trade credit and asset purchases in the ordinary course of businessInvestments by any Company Party pursuant to or under, or permitted by, any Transaction Document, Security Document or Transfer Document; including, without limitation, capital contributions to Subsidiaries created from time to time to effect any AFRT Foreclosure;
(b) Investments by any Company Party in assets that were Permitted Investments Cash Equivalents when such Investments were Investment was made;
(c) loans and or advances to officers, directors directors, members of management, and employees of the Borrower (or Parent Guarantor in an aggregate amount not to exceed $1,000,000 at any direct or indirect parent thereof) or any of its Subsidiaries (i) time outstanding, for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock determined without regard to any write-downs or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount write-offs of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (iiadvances); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments by any Guarantor in existence on, the 2014 July Repricing Effective Date and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateother Guarantor;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments (ii) received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(of) Investments existing on the date hereof and any modification, replacement, renewal or extension thereof; provided that the amount of the original Investment is not increased except by the terms (existing on the date hereof) of such Investment or as otherwise permitted by this Section 9.04(e);
(g) promissory notes and other non-cash consideration received in connection with Dispositions permitted by Section 9.07;
(h) Investments (including debt obligations and Equity Interests) received in connection with the bankruptcy or reorganization of any Person and in settlement of obligations of, or disputes with, any Person arising in the ordinary course of business consisting and upon foreclosure with respect to any secured Investment or other transfer of endorsements for collection or deposit and customary trade arrangements title with customers consistent with past practicesrespect to any secured Investment;
(pi) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or Guarantees by any Restricted Subsidiary Company Party of leases (other than Capital Capitalized Leases) or of other obligations that do not constitute Indebtedness, in each case case, entered into in the ordinary course of business;
(rj) Non-recourse carve-out guarantees by Parent Guarantor of obligations constituting Indebtedness;
(k) Investments held to the extent required by a Person acquired or made pursuant to joint venture agreements or other binding arrangements entered into between parties to any joint venture, in each case as in effect on the Restatement Date or as amended thereafter as permitted hereunder;
(including by way l) Investments in Seller, the proceeds of merger or consolidation) after which will be applied to repay the Original Closing Date otherwise Aggregate Repurchase Price in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation3.04;
(sm) Investments in Hedge Agreements permitted by KBS Acquisition or its subsidiaries, the proceeds of which will be applied to fund the T/I Reserve Account in accordance with Section 10.13.05(c);
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(un) Investments in any property included in the ordinary course of business in connection with Settlements;Xxxxxxx Portfolio; or
(vo) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date$15,000,000.
Appears in 2 contracts
Samples: Master Repurchase Agreement (KBS Real Estate Investment Trust, Inc.), Master Repurchase Agreement (KBS Real Estate Investment Trust, Inc.)
Limitation on Investments. The Borrower will notMake any advance, and will not permit loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes, debentures or other debt securities of, or any assets constituting an ongoing business from, or make any other investment in, any other Person (all of the Restricted Subsidiaries to make any Investment foregoing, "Investments"), except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madeinvestments in Cash Equivalents;
(c) Investments arising in connection with the incurrence of Indebtedness permitted by Section 7.2(b) and (e) ;
(d) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereofSubsidiaries of the Borrower in the ordinary course of business (including, without limitation, for travel, entertainment and relocation expenses) in an aggregate amount for the Borrower and Subsidiaries of the Borrower not to exceed $500,000 at any one time outstanding;
(e) the transaction contemplated pursuant to the Plan of Reorganization;
(f) Investments in assets useful in the Borrower's business made by the Borrower or any of its Subsidiaries with the proceeds of any Reinvestment Deferred Amount;
(g) Investments (other than those relating to the incurrence of Indebtedness permitted by Section 7.8(c)) by the Borrower or any of its Subsidiaries in the Borrower or any Person that, prior to such investment, is a Subsidiary Guarantor;
(h) Investments in existence on the date hereof listed on Schedule 7.8(h);
(i) loans and advances to developers in connection with the construction of new store locations not exceeding $10,000,000 at any one time outstanding; provided that such advances are evidenced by promissory notes in favor if the Borrower and such notes are pledged to the Collateral Agent for reasonable and customary business-related travelthe ratable benefit of the Lenders pursuant to the Security Documents;
(j) notes payable from purchasers of stores to the extent permitted pursuant to this Agreement, entertainment, relocation and analogous ordinary business purposes so long as (including employee payroll advances)i) the amount of any such note with respect to any store shall note exceed $500,000, (ii) in connection with the aggregate amounts of all such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents notes shall be contributed to the Borrower in cash not exceed $5,000,000 and (iii) all such notes are pledged to the Collateral Agent for purposes not described in the foregoing subclauses (i) and (ii); provided that ratable benefit of the aggregate principal amount outstanding Lenders pursuant to this subclause (iii) shall not exceed $10,000,000;the Security Documents; and
(dk) Investments existing on, debt or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date;
(e) Investments equity securities received in connection with the bankruptcy or reorganization of suppliers or and/or customers and in settlement of if delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to and/or suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(xl) additional Investments consisting of licensing of intellectual property with other Persons in a nature not contemplated pursuant to the ordinary course of business;
foregoing clauses (ya) through (k); provided that all Investments constituting contributions or other dispositions of pursuant to this clause (l) shall not exceed $1,000,000 at any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Dateone time.
Appears in 2 contracts
Samples: Credit Agreement (Grand Union Co /De/), Credit Agreement (Grand Union Co /De/)
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to make any Investment except:
(a) extensions of trade credit and asset purchases of assets and services (including purchases of inventory, supplies and materials) in the ordinary course of business;
(b) Investments in assets that were constituted Permitted Investments when at the time such Investments were made;
(c) loans and advances to officers, directors directors, employees and employees consultants of the Borrower (or any direct or indirect parent thereof) or any of its Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash cash) and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,00020,000,000;[Reserved];
(di) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Closing Date as set forth on Schedule 10.5, (ii) Investments existing on the Closing Date of the Borrower or any Subsidiary in any other Subsidiary and (iii) any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date;set forth on Schedule 10.5; 715000788 12406500715000788 12406500
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents (other than Disqualified Stock not otherwise permitted by Section 10.1) of Holdingsthe Borrower (or any direct or indirect parent thereof);
(g) Investments (i) by the Borrower in any Guarantor or by any Guarantor in the Borrower, (aii) by any Restricted Subsidiary that is not a Guarantor in the Borrower or any other Restricted Subsidiary, and (iii) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties Guarantor in any Restricted Subsidiary that is not a Credit PartyGuarantor, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value Fair Market Value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was is made, in an aggregate amount pursuant to this Section 10.5(g)(iii) that, at the time such InvestementInvestment is made, would not exceed the sum of (xA) the greater of $1,000,000,000125,000,000 and 1.25% of Consolidated Total Assets (measured as of the date such Investment is made based upon the financial statements most recently available prior to such date), when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x(B) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Equity Amount at such time plus and (zC) to the extent not otherwise included in the determination of the Applicable Equity Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount shall not exceed the amount of such Investment valued at the Fair Market Value of such Investment at the time such Investment was made) (it being understood that to the extent any Investment made pursuant to this Section 10.5(g)(iii) was made by using the Applicable Equity Amount, then the amounts referred to in clause (C) shall, to the extent of the original usage of the Applicable Equity Amount, be deemed to reconstitute such amounts).$5,000,000;
(h) Investments constituting Permitted Acquisitions; provided that the aggregate amount of Permitted Acquisition Consideration of such Permitted Acquisitions made or provided by the Borrower or any Subsidiary Guarantor to acquire any Restricted Subsidiary that does not become a Subsidiary Guarantor or merge, consolidate or amalgamate into the Borrower or a Subsidiary Guarantor or any assets that shall not, immediately after giving effect to such Permitted Acquisition, be owned by the Borrower or a Subsidiary Guarantor, shall not exceed the sum of (i) the greater of $250,000,000 and 2.50% of Consolidated Total Assets after giving effect to such Permitted Acquisitions, (ii) the Applicable Equity Amount at such time and (iii) by Credit Parties to the extent not otherwise included in the determination of the Applicable Equity Amount, an amount equal to any Restricted Subsidiary that is not a Credit Party so long as repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment is part (which amount shall not exceed the amount of a series such Investment valued at the Fair Market Value of simultaneous Investments such Investment at the time such Investment was made) (it being understood that to the extent any Investment made pursuant to this Section 10.5(h) was made by Restricted Subsidiaries using the Applicable Equity Amount, then the amounts referred to in other Restricted Subsidiaries that result in this clause (iii) shall, to the proceeds extent of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitionsoriginal usage of the Applicable Equity Amount, be deemed to reconstitute such amounts)$5,000,000;
(i) Investments (including but not limited to (i) minority Minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties, (iv) Permitted Acquisitions and (v) Investments in respect of royalty trusts and master limited partnerships), in each case valued at the fair market value Fair Market Value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (iSection 10.5(i) that, at the time each such Investment is made, would not exceed the sum of (xA) the greater 715000788 12406500715000788 12406500 of (1) $1,000,000,000 when taken together with Investments outstanding at 125,000,000 and (2) 1.25% of Consolidated Total Assets (measured as of the date such time in reliance on Section 10.5(g)(ii)(xInvestment is made based upon the financial statements most recently available prior to such date) plus (yB) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Equity Amount at such time plus (zC) without duplication to the extent not otherwise included in the determination of any amount that increased the JV Distribution Applicable Equity Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value Fair Market Value of such Investment at the time such Investment was made) plus (aait being understood that to the extent any Investment made pursuant to this Section 10.5(i) was made by using the Applicable Equity Amount Amount, then the amounts referred to in the clause (C) shall, to the extent of the original usage of the Applicable Equity Amount, be deemed to reconstitute such amounts); provided that the foregoing limits shall not apply during the period in which, and Investments may be made pursuant to this Section 10.5(i) without limit at any such timetime during which, after giving Pro Forma Effect to the making of any such Investment, (1) no Event of Default shall have occurred and be continuing and (2) Liquidity is not less than 10% of the then effective Borrowing Base (on a Pro Forma Basis after giving effect to such Investment); provided, further, that intercompany current liabilities incurred in the ordinary course of business and consistent with past practices, in connection with the cash management operations of the Borrower and the Subsidiaries shall not be included in calculating any limitations in this paragraph at any time$5,000,000;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.410.4;[Reserved];
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by the Co-Investors or its Affiliates or any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof)) in an aggregate amount pursuant to this Section 10.5(k) not exceeding $5,000,000;
(l) Investments consisting of dividends Dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends Dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of business;
(q) Guarantee Obligations guarantee obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;; 715000788 12406500715000788 12406500
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1Industry Investments and in interests in additional Oil and Gas Properties and gas gathering systems related thereto or Investments related to farm-out, farm-in, joint operating, joint venture, joint development or other area of mutual interest agreements, other similar industry investments, gathering systems, pipelines or other similar oil and gas exploration and production business arrangements whether through direct ownership or ownership through a joint venture or similar arrangement;
(t) Investments arising out of or in connection with any Permitted Receivables FinancingTo the extent constituting Investments, the Transactions;
(u) Investments in the ordinary course of business in connection with SettlementsHedge Agreements permitted by Section 10.1 and Section 10.10;
(v) Investments consisting of Indebtedness, fundamental changes, Dispositions and Dividends permitted under Sections 10.1, 10.3, 10.4 and 10.6 (other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3than 10.6(c)); and
(xw) Investments consisting of licensing of intellectual property pursuant to joint marketing arrangements with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.
Appears in 2 contracts
Samples: Fifth Amendment and Waiver Agreement (Samson Resources Corp), Fifth Amendment and Waiver Agreement (Samson Resources Corp)
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries to to, make any advance, loan, extensions of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets of, or make any other Investment in, any Person, except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madeInvestments;
(c) (i) loans and advances to officers, directors and employees of the Borrower or any of its Subsidiaries in an aggregate principal amount at any time outstanding under this clause (c) not exceeding $25,000,000, and (ii) obligations of one or more officers or other employees of Holdings or its Subsidiaries in connection with such officers’ or employees’ acquisition of shares of any direct or indirect parent thereof) entity of the Borrower, so long as no cash is actually advanced by the Borrower or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) to such officers or employees in connection with the acquisition of any such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000obligations;
(d) Investments existing on, or made pursuant contractually committed on the Closing Date and listed on Schedule 10.5 to legally binding written commitments in existence on, the 2014 July Repricing Effective Date this Agreement and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of any Investment made all Investments pursuant to this clause (d) is not increased at any time above the amount of such Investment Investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Closing Date;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investmentbusiness;
(f) Investments to the extent that payment for such Investments is made solely with Stock or Stock Equivalents capital stock of Holdingsthe Borrower;
(g) Investments in (i) (a) by any Subsidiary Guarantor or the Borrower or any Restricted Subsidiary in any Credit Party, and (bii) between or among Restricted Subsidiaries that are not Credit PartiesGuarantors, and (c) consisting of intercompany Investments incurred in the ordinary course case of business in connection with the cash management operations this clause (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicableg)(ii), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the an aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant not to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) in the case of Government Business Subsidiaries, $1,000,000,000, when taken together with Investments 150,000,000 at any one time outstanding at such time in reliance on Section 10.5(i)(x) plus and (y) if in the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making case of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in all other Restricted Subsidiaries that result are not Guarantors, $200,000,000 in the proceeds of the initial Investment being invested in aggregate at any one or more Credit Partiestime outstanding;
(h) Investments constituting Permitted AcquisitionsAcquisitions and Investments held by any Person that becomes a Subsidiary as a result of any such Permitted Acquisition to the extent such Investments were not made in contemplation of such Permitted Acquisition and were in existence on the date of such Permitted Acquisition;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties)other Investments, in each case case, as valued at the fair market value (determined by the Borrower acting in good faith) Fair Market Value of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.
Appears in 2 contracts
Samples: Amendment No. 2 and Joinder Agreement (Intelsat S.A.), Credit Agreement (Intelsat S.A.)
Limitation on Investments. The Borrower will notMake any advance, and will not permit loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes, debentures or other debt securities of, or any assets constituting an ongoing business from, or make any other investment in, any other Person (all of the Restricted Subsidiaries to make any Investment foregoing, “Investments”), except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madeinvestments in Cash Equivalents;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) Investments arising in connection with such Person’s purchase the incurrence of Stock Indebtedness permitted by Section 6.01(b) or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (iie); provided that the aggregate principal amount outstanding of such Investments made by any Borrower or a Subsidiary Guarantor during the term of this Agreement and during any fiscal year of the Company in any Subsidiary that is not a Borrower or a Subsidiary Guarantor (for the avoidance of doubt, excluding Investments made pursuant to this subclause (iiiSection 6.07(e)) shall not exceed $10,000,000the Non-Guarantor Investment Basket Amount for such term and for the period then in effect for such fiscal year in lieu thereof;
(d) loans and advances to employees of the Company or any Subsidiaries of the Company in the ordinary course of business (including, without limitation, for travel, entertainment and relocation expenses) in an aggregate amount for the Company and Subsidiaries of the Company not to exceed $25,000,000 at any one time outstanding;
(e) the Canadian Primary Borrower may make additional Investments existing on, or made pursuant to legally binding written commitments in existence on, Canadian Subsidiaries that are Wholly-Owned Subsidiaries of the 2014 July Repricing Effective Date and any extensions, renewals or reinvestments thereofCompany with the proceeds of Revolving Loans, so long as the aggregate outstanding amount of all such Investments (net of cash repayments of principal in the case of Investments in the form of loans, sale proceeds in the case of Investments in the form of debt instruments and cash equity returns (whether as a distribution, dividend, redemption or sale) in the case of equity Investments) does not exceed $15,000,000;
(f) Investments (other than those relating to the incurrence of Indebtedness permitted by Section 6.07(c)) by (i) the Company or any of its Subsidiaries in any Borrower or any Person that, prior to such Investment, is a Subsidiary Guarantor, (ii) any Borrower or any Subsidiary Guarantor in any Subsidiary that is not a Subsidiary Guarantor not to exceed, in any fiscal year of the Company, the Non-Guarantor Investment Basket Amount then in effect for such fiscal year, (iii) any Foreign Subsidiary in any other Foreign Subsidiary that is a Wholly-Owned Subsidiary of the Company and (iv) Investments made in the parent companies of the Canadian Primary Borrower in order to pay principal and interest on the Loans;
(g) in addition to Investments otherwise expressly permitted by this Section, Investments by the Company or any of its Subsidiaries in an aggregate amount for all Investments made pursuant to this clause (dg) is not increased at any time above the amount (net of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date;
(e) Investments received in connection with the bankruptcy or reorganization cash repayments of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising principal in the ordinary course case of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan loans, sale proceeds in the case of Investments in the form of debt instruments and cash equity returns (whether as a distribution, dividend, redemption or advance sale) in the case of equity Investments) not to exceed $50,000,000;
(h) the purchase or other acquisition of Property and assets or businesses of any Person or of assets constituting a business unit, a line of business or division of such Person, or Capital Stock in a Person that, upon the consummation thereof, will be, or will be part of, a Subsidiary of the Company (including as a result of a merger, amalgamation or consolidation); provided that, with respect to each purchase or other acquisition made pursuant to this Section 6.07(h) (each, a “Permitted Acquisition”):
(i) except as permitted by clause (vii) below, all Property, assets and businesses acquired in such purchase or other acquisition shall constitute Collateral and each applicable Loan Party and any such newly created or acquired Subsidiary (and the Borrower Subsidiaries of such created or such Restricted acquired Subsidiary) shall be a Subsidiary complies Guarantor and shall have complied with the requirements of Section 9.12 to the extent applicable), 5.09;
(ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Partyafter giving effect to such purchase or acquisition, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower Company and its Subsidiaries shall be in compliance with Section 6.14;
(iii) immediately before and after giving pro forma effect to any such purchase or other acquisition, no Default shall have occurred and be continuing;
(iv) calculations are made by the Senior Secured Company demonstrating (A) compliance with the financial covenants set forth in Section 6.18 for the Calculation Period then last ended (calculated on a Pro Forma Basis as if the respective Permitted Acquisition (as well as all other Specified Transactions theretofore consummated after the first day of such Calculation Period) had occurred on the first day of such Calculation Period) and (B) the Net Leverage Test, Ratio for such Calculation Period is no more than 3.25 to 1.00;
(v) all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Permitted Acquisition (both before and after giving effecteffect thereto), on unless stated to relate to a Pro Forma Basis to the making specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such Investment, earlier date;
(vi) the Applicable Amount sum of the (x) aggregate unused portion of the Revolving Commitments at such time plus (zafter giving effect to the consummation of the respective Permitted Acquisition and any financing thereof) and (y) the Applicable Equity Amount at such time aggregate amount of cash and Cash Equivalents (iiiin each case, free and clear of all Liens, other than nonconsensual Liens permitted by Section 6.02 and Liens in favor of the Administrative Agent pursuant to the Collateral Documents) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result included in the proceeds consolidated balance sheet of the initial Investment being invested in one Company and its Subsidiaries as of such date, shall equal or more Credit Partiesexceed $25,000,000;
(hvii) Investments constituting Permitted Acquisitionsin any fiscal year of the Company, the sum of the Aggregate Consideration paid in respect of all acquisitions of Persons that do not become Subsidiary Guarantors (and/or assets that do not become direct Collateral of a Subsidiary Guarantor (i.e., Collateral other than Capital Stock owned by a Subsidiary Guarantor)) shall not exceed the Non-Guarantor Investment Basket Amount then in effect for such fiscal year; and
(viii) if the Aggregate Consideration to be paid in respect of such purchase of acquisition equals or exceeds $25,000,000, the Company shall have delivered to the Administrative Agent within five (5) Business Days of such acquisition, on behalf of the Lenders, a certificate of a Responsible Officer, certifying that all of the requirements set forth in this Section 6.07(h) have been satisfied or will be satisfied on or prior to the consummation of such purchase or other acquisition and containing the calculations (in reasonable detail) required by preceding clauses (ii), (iv), (vi) and (vii); provided that, notwithstanding the foregoing, with respect to the acquisition of Maybach, (x) only clauses (iii), (iv) and (v) above shall apply to such acquisition and (y) the Aggregate Consideration for such acquisition shall not count against the Non-Guarantor Investment Basket Amount;
(i) Investments (including but not limited to (i) minority Investments and Investments Asset Swaps may be consummated in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance accordance with the Senior Secured Leverage Test, both before definition thereof and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such timeSection 6.04(j);
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent constituting Investments, Hedge Agreements permitted by under Section 10.4;6.17; and
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors Subsidiaries and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after existing on the Original Closing Effective Date otherwise in accordance with and listed on Schedule 6.07. The amount of any Investment for purposes of this Section 10.5 to 6.07 (and the extent that such Investments were not made in contemplation definition of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(sNon-Guarantor Investment Basket Amount) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, shall be determined at the time each of such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course case of business;
(yan Investment made with consideration other than in cash, taking the Fair Market Value of the Property so invested) Investments constituting contributions or other dispositions and shall not take account of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Datewrite-downs or write-offs thereof.
Appears in 2 contracts
Samples: Credit Agreement (LKQ Corp), Amendment and Restatement Agreement (LKQ Corp)
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to make any Investment except:
(a) extensions of trade credit and credit, asset purchases (including purchases of inventory, fuel (including all forms of nuclear fuel), supplies, materials and equipment) and the licensing or contribution of intellectual property pursuant to joint marketing arrangements or development agreements with other Persons, in each case in the ordinary course of businessbusiness (including in respect of construction or restoration activities);
(b) Investments that were in cash or Permitted Investments when such Investments were made;
(c) loans and advances to officers, directors directors, employees and employees consultants of the Borrower (or any direct or indirect parent thereof) or any Subsidiary of its Subsidiaries the Borrower (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower Holdings (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash cash) and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,00025,000,000 at any one time outstanding;
(d) Investments (i) contemplated by the Plan or to consummate the Transactions and (ii) existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Closing Date and, to the extent such Investments exceed $15,000,000, set forth on Schedule 10.5 and any extensionssupplement, renewals amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or reinvestments extension thereof, so long as only to the extent that the amount of any Investment made pursuant to this clause (dd)(ii) is does not increased at any time above exceed the amount of such Investment existing onset forth on Schedule 10.5 (except by an amount equal to the unpaid accrued interest and premium thereon plus any unused commitments plus amounts paid in respect of fees, premiums, costs and expenses incurred in connection with such supplement, amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateextension or as otherwise permitted hereunder);
(e) Investments received any Investment acquired by the Borrower or any Restricted Subsidiary (a) in exchange for any other Investment or accounts receivable held by the Borrower or any such Restricted Subsidiary in connection with the bankruptcy or reorganization as a result of suppliers a bankruptcy, workout, reorganization, or customers and in recapitalization of, or settlement of delinquent obligations ofaccounts or disputes with or judgments against, and other disputes withthe issuer, customers arising in obligor or borrower of such original Investment or accounts receivable, (b) as a result of a foreclosure by the ordinary course of business Borrower or upon foreclosure any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured InvestmentInvestment in default or (c) as a result of the settlement, compromise or resolution of litigation, arbitration or other disputes with Persons who are not Affiliates;
(f) Investments to the extent that payment for such Investments is made with (i) Stock or Stock Equivalents of Holdings;
(gother than Disqualified Stock) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof owned by thereof) or (ii) the proceeds from the issuance of Stock or Stock Equivalents (other than Disqualified Stock, any employee Cure Amount, any sale or issuance to any stock ownership plan Subsidiary and any issuance applied pursuant to Section 10.6(a) or key employee stock ownership plan Section 10.6(b)(i)) of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent ; provided that such Investments were not made in contemplation of Stock or in connection with such acquisition, merger Stock Equivalents or consolidation and were in existence on the date proceeds of such acquisition, merger Stock or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would Stock Equivalents will not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) increase the Applicable Equity Amount at such timeAmount;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.
Appears in 2 contracts
Samples: Credit Agreement (Vistra Energy Corp), Credit Agreement (Energy Future Competitive Holdings Co LLC)
Limitation on Investments. The Borrower will notLoans and Advances. Make any advance, and will not permit 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 (all of the Restricted Subsidiaries foregoing being herein collectively referred to make as "Investments"), any Investment Person, except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madein Cash Equivalents;
(c) loans and advances to officers, directors and employees of the Borrower (such Person or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, entertainment and relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred expenses in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant for HCC and its Subsidiaries not to this subclause (ii), when valued exceed $250,000 at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the any one time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Partiesoutstanding;
(hd) Investments constituting Permitted Acquisitionsby HCC in its Subsidiaries which are or become Guarantors and investments by such Subsidiaries which are or become Guarantors in HCC and in other Subsidiaries of HCC which are or become Guarantors;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(ze) Investments by any Credit Party HCC in any Restricted Subsidiary that is not a Credit Party Hanover Land Company in an aggregate amount not to exceed $5,000,000 plus amounts necessary to maintain and operate the fair market value real property and improvements thereon owned by Hanover Land Company;
(f) Investments in Unqualified Subsidiaries of HCC;
(g) Investments constituting Permitted Business Acquisitions so long as, after giving effect to the consummation of the transactions contemplated by each Permitted Business Acquisition and the Loans and the loans to be made and the Letters of Credit to be issued in connection with the Corporate Credit Agreement, the sum of (i) the cash and Cash Equivalents then held by HCC and (ii) an amount equal to the difference between (A) the aggregate Commitments under the Corporate Credit Agreement, the aggregate Commitments, and the aggregate Investor Commitments in effect at such time and (B) the aggregate amount of the Aggregate Outstanding Extensions of Credit under the Corporate Credit Agreement, the Available Commitments and the Available Investor Commitments at such time, equals at least $20,000,000;
(h) Investments or acquisitions by HCC or its Subsidiaries in up to 50% of the shares of capital stock, partnership interests, joint venture interests, limited liability company interests or other similar equity interests in, a Person (other than a Subsidiary), provided that the aggregate amount of all dividends such investments or acquisitions does not exceed $25,000,000 in any fiscal year; and
(i) Loans to employees, officers and other distributions received by Credit Parties from Restricted directors of HCC and its Subsidiaries that are to acquire shares of capital stock of HCC not Credit Parties since the Initial Effectiveness Dateto exceed $20,000,000.
Appears in 2 contracts
Samples: Guarantee (Hanover Compressor Co), Guarantee (Hanover Compressor Co)
Limitation on Investments. The US Borrower will not, and will not permit any of the Restricted Subsidiaries to to, make any Investment advance, loan, extensions of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets of, or make any other investment in, any Person, except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madeInvestments;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) Parent or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s to finance the purchase of Stock or Stock Equivalents capital stock of the Borrower Parent (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, that the amount of such loans and advances used to acquire such Stock or Stock Equivalents capital stock shall be contributed by Holdings to the US Borrower in cash as common equity using the proceeds of prior contributions of common equity by Parent to PIK Holdco and (iii) for purposes not described in the foregoing subclauses (iby PIK Holdco to Holdings, respectively) and (ii); provided that the ) for additional purposes not contemplated by subclause (i) above in an aggregate principal amount at any time outstanding pursuant with respect to this subclause clause (iiiii) shall not exceed exceeding $10,000,000;
(d) Investments investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Date date hereof and listed on Schedule 10.5 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of any Investment made all investments pursuant to this clause (d) is not increased at any time above the amount of such Investment investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Datedate hereof;
(e) Investments investments in Hedge Agreements permitted by Section 10.1(h);
(f) investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investmentbusiness;
(fg) Investments investments to the extent that payment for such Investments investments is made solely with Stock or Stock Equivalents capital stock of Holdingsany of the Parent Companies;
(gh) Investments investments constituting non-cash proceeds of sales, transfers and other dispositions of assets to the extent permitted by Section 10.4;
(i) investments in any Guarantor (aother than Holdings), the US Borrower, the UK Borrower or any Foreign Subsidiary Guarantor;
(j) investments constituting Permitted Acquisitions, provided that the aggregate amount of any such investment, as valued at the fair market value of such investment at the time each such investment is made, made by the US Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit PartyForeign Subsidiary, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date such Restricted Foreign Subsidiary does not become a Foreign Subsidiary Guarantor pursuant to this subclause (ii)Section 9.11 and does not enter into the guarantee and collateral arrangements contemplated thereby, when valued at shall not exceed the fair market value (determined by the Borrower acting in good faith) of each such Investment Available Amount at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time investment plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment investment valued at the fair market value of such Investment investment at the time such Investment investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4);
(k) Investments investments in the equity interests of one or more newly formed persons that are received in consideration of the contribution by the US Borrower or its applicable Restricted Subsidiaries of assets (including capital stock) to such person or persons, provided that (i) the fair market value of such assets, determined on arms-length basis, so contributed pursuant to this paragraph (k) shall not in the aggregate exceed $50,000,000, (ii) with respect to investments in Foreign Joint Ventures, the sum of all investments in Foreign Joint Ventures made pursuant to this Section 10.5 (k) prior to the date thereof and all investment in Foreign Joint Ventures made pursuant to Section 10.5(m) below prior to the date thereof, when taken together, as valued at the fair market value of such investment at the time each such investment is made, does not exceed $100,000,000 plus an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such investment (which amount shall not exceed the amount of such investment valued at the fair market value of such investment at the time such investment was made) in the aggregate and (iii) in respect of each such contribution, an Authorized Officer of the US Borrower shall certify, in a form to be agreed upon by the US Borrower and the Administrative Agent (x) after giving effect to such contribution, no Default or Event of Default shall have occurred and be continuing, (y) the fair market value of the assets so contributed and (z) that the requirements of paragraph (i) of this proviso remain satisfied;
(l) investments made to repurchase or retire Stock or Stock Equivalents common stock of the Borrower or any direct or indirect parent thereof Parent owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (Parent Companies, Holdings or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6the US Borrower;
(m) loans additional investments (including investments in Minority Investments and advances to any direct or indirect parent Unrestricted Subsidiaries), as valued at the fair market value of such investment at the Borrower time each such investment is made, in lieu of, and an aggregate amount at the time of such investment not in excess of the Available Amount at such time plus an amount ofequal to any repayments, dividends interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such investment (which amount shall not exceed the amount of such investment valued at the fair market value of such investment at the time such investment was made), provided, that with respect to investments in Foreign Joint Ventures, the sum of all investments in Foreign Joint Ventures made pursuant to Section 10.5 (k) above prior to the extent permitted date thereof and all investment in Foreign Joint Ventures made pursuant to be made this Section 10.5(m) prior to the date thereof, when taken together, as valued at the fair market value of such parent investment at the time each such investment is made, does not exceed $100,000,000 plus an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in accordance with Section 10.6cash in respect of any such investment (which amount shall not exceed the amount of such investment valued at the fair market value of such investment at the time such investment was made) in the aggregate;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;investments permitted under Section 10.6; and
(o) Investments contributions to a "rabbi" trust within the meaning of Revenue Procedure 92-64 or contributions to a trust which is qualified under Section 401(a) of the Code or other grantor trust subject to the claims of creditors in the ordinary course case of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations a bankruptcy of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness DateUS Borrower.
Appears in 1 contract
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries to to, make any Investment except:Investment, except (each of the following exceptions, the “Permitted Investments”):
(a) extensions of trade credit and credit, asset purchases (including purchases of inventory, Intellectual Property, supplies, materials or equipment or other similar assets), licenses, sublicenses, leases or subleases of other assets and the licensing or sublicensing or contribution of Intellectual Property or other rights and the contribution of other assets, Intellectual Property or other rights pursuant to joint marketing arrangements with other Persons, in each case in the ordinary course of businessbusiness or consistent with past practice or industry norm;
(b) Investments that were Permitted Investments when in assets constituting, or at the time of making such Investments were madewere, cash or Cash Equivalents;
(c) loans and advances to (or guarantees of Indebtedness of) officers, directors managers, directors, employees, consultants and employees independent contractors of the Borrower Holdings (or any direct or indirect parent Parent Entity thereof) ), the Borrower or any of its Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes to fund or finance the purchase of Capital Stock of Holdings (including employee payroll advancesor any Parent Entity thereof or any Equityholding Vehicle), (ii) for business related travel expenses, entertainment expenses, moving expenses, relocation expenses and similar expenses, Tax advances, payroll advances and similar expenses, in connection each case incurred in the ordinary course of business or consistent with such Person’s purchase of Stock past practice or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash industry norm and (iii) for additional purposes not described contemplated by subclause (i) or (ii) above; provided that, after giving pro forma effect to the making of any such loan or advance, the aggregate principal amount of all loans and advances outstanding under this Section 10.5(c)(iii) shall not exceed the greater of (x) $35,000,000 and (y) 5.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to the date such Investment is made (measured as of such date) based upon the Internal Financial Statements most recently available on or prior to such date;
(d) Investments (i) existing on the Closing Date or (ii) contemplated on the Closing Date or made pursuant to binding agreements in effect on the Closing Date to the extent listed on Schedule 10.5 and (iii) in the foregoing subclauses case of each of clauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, any modification, replacement, renewal, extension or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date and any extensions, renewals or reinvestments reinvestment thereof, so long as the aggregate amount of any Investment made all Investments pursuant to this clause (dSection 10.5(d) is not increased at any time above the amount of such Investment Investments or binding agreements existing onor contemplated on the Closing Date, or made except pursuant to legally the terms of such Investment or binding written commitments in existence on, agreements existing or contemplated as of the 2014 July Repricing Effective DateClosing Date (including as a result of the accrual or accretion of original issue discount or the issuance of payment-in-kind obligations) or as otherwise permitted by this Section 10.5 or Section 10.6;
(e) Investments in Hedging Agreements permitted by Section 10.1 and Cash Management Agreements permitted by Section 10.1;
(f) Investments received (i) in connection with the bankruptcy with, or as a result of, any bankruptcy, workout, reorganization or recapitalization of suppliers suppliers, trade creditors or customers and or in settlement or compromise of delinquent obligations ofand disputes with, and or judgments against, or other disputes with, customers arising customers, trade creditors or suppliers, including pursuant to any plan of reorganization or similar arrangement upon bankruptcy or insolvency of any customer, trade creditor or supplier, (ii) in satisfaction of judgments against other Persons, (iii) as a result of the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured InvestmentInvestment or (iv) as a result of the settlement, compromise or resolution of litigation, arbitration or other disputes with Person who are not Affiliates;
(fg) Investments to the extent that the payment for such Investments is made solely with the Capital Stock (other than Disqualified Capital Stock) of Holdings (or Stock Equivalents of Holdingsany Parent Entity thereof or any Equityholding Vehicle) or the Borrower;
(gh) Investments constituting non-cash proceeds of sales, transfers and other Dispositions of assets to the extent permitted by Sections 10.3 and 10.4 (other than clause (h));
(i) (ai) Investments by or among the Borrower and/or the Restricted Subsidiaries in the Borrower or any other Restricted Subsidiary (including guarantees of obligations of the Borrower or any Restricted Subsidiary and any prepayments, repurchases, redemptions, defeasances, acquisitions and other similar payments of any Indebtedness of any such Person not prohibited by Section 10.7) and (ii) Investments by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between Unrestricted Subsidiary or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when Joint Venture as valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) Fair Market Value of such Investment at the time each such Investment is made, in an ; provided that the amount of such Investment (as so valued) shall not cause the aggregate amount of all such Investments made pursuant to this clause (iSection 10.5(i)(ii) that, at the time each such Investment is made, would not to exceed the sum of (A) the greater of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus 215,000,000 and (y) if 30.0% of Consolidated EBITDA of the Borrower shall be in compliance with and its Restricted Subsidiaries for the Senior Secured Leverage Test, both before and after giving effect, Test Period most recently ended on a Pro Forma Basis or prior to the making date such Investment is made (measured as of such Investment, date) based upon the Applicable Amount at Internal Financial Statements most recently available on or prior to such time date plus (zB) without duplication of any amount that increased the JV Distribution Amountclause (A), an amount equal to the amount by which aggregate Net Cash Proceeds from any repaymentsDisposition of, interest, returns, profits, distributions, income and similar amounts actually received in cash or any Returns in respect of any such Investment of, Investments made in reliance on clause (which amount referred to in this subclause (zA) shall not exceed exceeds the amount set forth in clause (A) to the extent such amount does not also increase the Available Amount; provided, that if any Investment pursuant to this Section 10.5(i)(ii) is made in any Person that is not a Restricted Subsidiary at the date of the making of such Investment valued at and such Person becomes a Restricted Subsidiary or such Person, in one transaction or a series of related transactions, is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the fair market value of Borrower or any Restricted Subsidiary, in each case, after such date, such Investment at the time shall thereafter be deemed to have been made pursuant to Section 10.5(i)(i) above and shall cease to have been made pursuant to Section this 10.5(i)(ii) for so long as such Investment was made) plus (aa) the Applicable Equity Amount at such timePerson continues to be a Restricted Subsidiary;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans advances, loans, rebates and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit (including in the nature of accounts receivable or receivable, notes receivable arising from the grant receivable, security deposits and prepayments (including prepayments of expenses) and trade credit credit) granted to suppliers, customers and vendors and performance guarantees, in each case, in the ordinary course of businessbusiness or consistent with past practice or industry norm, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other deposits, prepayments and other credits to suppliers suppliers, customers and vendors in the ordinary course of businessbusiness or consistent with past practice or industry norm;
(ok) the Borrower may make a loan to Holdings (or any Parent Entity thereof or any Equityholding Vehicle) that could otherwise be made as a Restricted Payment (other than a Restricted Investment) to Holdings (or any Parent Entity thereof or any Equityholding Vehicle) under Section 10.6, so long as the amount of such loan is deducted from the amount available to be made as a Restricted Payment under the applicable clause of Section 10.6;
(l) Investments in the ordinary course of business or consistent with past practice or industry norm consisting of UCC Article 3 endorsements for collection or deposit and UCC Article 4 customary trade arrangements with customers consistent with past practicescustomers;
(pm) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to officers, managers, employees, consultants or independent contractors, in each case in the ordinary course of businessbusiness or consistent with past practices or industry norm;
(qn) Guarantee Obligations of Guarantees by the Borrower or any Restricted Subsidiary of leases or subleases (other than Capital Leases) Financing Lease Obligations), Contractual Obligations or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of businessbusiness or consistent with past practice or industry norm;
(o) Investments made to acquire, purchase, repurchase, redeem, acquire or retire Capital Stock of Holdings (or any Parent Entity thereof or any Equityholding Vehicle) or the Borrower owned by any employee equity ownership plan or key employee equity ownership plan of Holdings (or any Parent Entity thereof or any Equityholding Vehicle) or the Borrower;
(p) Investments constituting Permitted Acquisitions;
(q) any additional Investments (including Investments in Minority Investments, Investments in Unrestricted Subsidiaries and Investments in Joint Ventures or similar entities that do not constitute Restricted Subsidiaries), as valued at the Fair Market Value of such Investment at the time each such Investment is made; provided that the amount of such Investment (as so valued) shall not cause the aggregate amount of all such Investments made pursuant to this Section 10.5(q) measured at the time such Investment is made, to exceed, after giving pro forma effect to such Investment, the sum of (i) the sum of (A) the greater of (x) $290,000,000 and (y) 40.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior the date such Investment is made (measured as of such date) based upon the Internal Financial Statements most recently available on or prior to such date plus (B) without duplication of clause (A), an amount equal to the amount by which aggregate Net Cash Proceeds from any Disposition of, or any Returns in respect of, Investments made in reliance on clause (A) exceeds the amount set forth in clause (A) to the extent such amount does not also increase the Available Amount, plus (ii) the Available Equity Amount at such time, plus (iii) the Available Amount at such time; provided, however, that if any Investment pursuant to this Section 10.5(q) is made in any Person that is not a Restricted Subsidiary at the date of the making of such Investment and such Person becomes a Restricted Subsidiary or such Person, in one transaction or a series of related transactions, is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Borrower or a Restricted Subsidiary, in each case, after such date, such Investment shall thereafter be deemed to have been made pursuant to Section 10.5(i)(i) above and shall cease to have been made pursuant to this Section 10.5(q) for so long as such Person continues to be a Restricted Subsidiary.
(r) Investments arising as a result of Sale Leasebacks;
(s) Investments held by a any Person acquired (including by way of merger the Borrower or consolidation) any a Restricted Subsidiary after the Original Closing Date otherwise or of any Person merged, consolidated or amalgamated with or into the Borrower or merged, consolidated or amalgamated with or into a Restricted Subsidiary in accordance with this Section 10.5 10.3 after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger merger, consolidation or consolidation amalgamation and were in existence on the date of such acquisition, merger merger, consolidation or consolidationamalgamation;
(st) Investments in Hedge Agreements consisting of Indebtedness, fundamental changes, Dispositions, Restricted Payments (other than Restricted Investments) and debt payments permitted under Sections 10.1, 10.3 (but only any lettered paragraphs thereof), 10.4 (other than 10.4(e) or 10.4(h) (as such Section 10.4(h) relates to Section 10.5)), 10.6 (other than 10.6(c)(i)) and 10.7;
(u) the forgiveness, capitalization or conversion to Qualified Capital Stock of any Indebtedness owed by the Borrower or any Restricted Subsidiary and permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) Restricted Subsidiaries may be established or created if the Borrower shall be in compliance and such Restricted Subsidiary comply with the Senior Secured Leverage Testrequirements of Sections 9.10, both before 9.11 and after giving effect9.14, on a Pro Forma Basisif applicable; provided that, in each case, to the making extent such new Restricted Subsidiary is created solely for the purpose of consummating a transaction pursuant to an acquisition permitted by this Section 10.5, and such new Restricted Subsidiary at no time holds any assets or liabilities other than any merger consideration contributed to it contemporaneously with the closing of such Investmenttransactions, such new Restricted Subsidiary shall not be required to take the Applicable Amount plus actions set forth in Sections 9.10, 9.11 and 9.14 until the respective acquisition is consummated (z) at which time the Applicable Equity Amount at such timesurviving entity of the respective transaction shall be required to so comply in accordance with the provisions thereof);
(w) Investments consisting of xxxxxxx money deposits required in connection with any transaction permitted by Section 10.3; andpurchase agreements or other Acquisitions or Investments;
(x) Investments consisting of licensing loans and advances to Holdings (or any Parent Entity or any Equityholding Vehicle) and its Subsidiaries in connection with the reimbursement of intellectual property with other Persons expenses incurred on behalf of the Borrower and its Restricted Subsidiaries in the ordinary course of businessbusiness or consistent with past practice or industry norm;
(y) Investments constituting contributions or other dispositions Investment Grade Securities maturing no more than 24 months from the date of any Foreign Subsidiary to another Foreign Subsidiary; andacquisition;
(z) contributions in connection with compensation arrangements to a “rabbi” trust for the benefit of employees, directors, partners, members, consultants, independent contractors or other service providers or other grantor trust subject to claims of creditors in the case of a bankruptcy of the Borrower or any of its Restricted Subsidiaries;
(aa) non-cash or non-Cash Equivalent Investments by in connection with tax planning and reorganization activities; provided that, after giving pro forma effect to any Credit Party in any Restricted Subsidiary that is such activities, the Liens on the Collateral securing the Obligations would not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.be materially impaired;
Appears in 1 contract
Samples: Credit Agreement (MultiPlan Corp)
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to make any Investment except:
(a) extensions of trade credit and credit, asset purchases (including purchases of inventory, supplies, materials and equipment) and the licensing or contribution of intellectual property pursuant to joint marketing arrangements, original equipment manufacturer arrangements or development agreements with other Persons, in each case in the ordinary course of business;
(b) Investments that were Permitted Investments in cash or Cash Equivalents when such Investments were made;
(c) loans and advances to officers, directors managers, directors, employees, consultants and employees independent contractors of the Borrower (or any direct or indirect parent thereof) or any Subsidiary of its Subsidiaries the Borrower (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower Holdings (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash cash) and (iii) for purposes not described in the foregoing subclauses clauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause clause (iii) shall not exceed $10,000,00025,000,000 at any one time outstanding;
(d) Investments (i) contemplated by the Plan or to consummate the Transactions and (ii) existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Closing Date and, to the extent such Investments exceed $5,000,000, set forth on Schedule 10.5 and any extensionssupplement, renewals amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or reinvestments extension thereof, so long as only to the extent that the amount of any Investment made pursuant to this clause (dd)(ii) is does not increased at any time above exceed the amount of such Investment existing onset forth on Schedule 10.5 (except by an amount equal to the unpaid accrued interest and premium thereon plus any unused commitments plus amounts paid in respect of fees, premiums, costs and expenses incurred in connection with such supplement, amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateextension or as otherwise permitted hereunder);
(e) Investments received any Investment acquired by the Borrower or any Restricted Subsidiary (i) in exchange for any other Investment or accounts receivable held by the Borrower or any such Restricted Subsidiary in connection with the bankruptcy or reorganization as a result of suppliers a bankruptcy, workout, reorganization, or customers and in recapitalization of, or settlement of delinquent obligations ofaccounts or disputes with or judgments against, and other disputes withthe issuer, customers arising in obligor or borrower of such original Investment or accounts receivable, (ii) as a result of a foreclosure by the ordinary course of business Borrower or upon foreclosure any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured InvestmentInvestment in default or (iii) as a result of the settlement, compromise or resolution of litigation, arbitration or other disputes with Persons who are not Affiliates or in satisfaction or judgments against other Persons;
(f) Investments to the extent that payment for such Investments is made with (i) Stock or Stock Equivalents (other than Disqualified Stock) of Holdingsthe Borrower (or any direct or indirect parent thereof) or (ii) the proceeds from the issuance of Stock or Stock Equivalents (other than Disqualified Stock, any sale or issuance to any Subsidiary and any issuance applied pursuant to Section 10.6(a) or Section 10.6(b)(i)) of the Borrower (or any direct or indirect parent thereof); provided that such Stock or Stock Equivalents or proceeds of such Stock or Stock Equivalents will not increase the Available Equity Amount;
(g) Investments (i) (aother than in the form of direct or indirect transfers or Dispositions of intellectual property from a Credit Party to a non-Credit Party) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary or any Person that is not a Credit Partywill, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each upon such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on become a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit PartiesSubsidiary;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to constituting (i) minority Minority Investments and Investments in Unrestricted Subsidiaries, Subsidiaries and (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount at any one time outstanding pursuant to this clause (i) that, at the time each such Investment is made, would not exceed an amount equal to the sum greater of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus 160,000,000 and (y) if 20% of Consolidated EBITDA for the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, most recently ended Test Period (calculated on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such timeBasis);
(j) Investments constituting non-cash proceeds of received from Dispositions of assets pursuant to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof) in an aggregate amount, when combined with distributions made pursuant to Section 10.6(b), not to exceed the limitations set forth in such Section;
(l) Investments consisting of dividends or resulting from Indebtedness, Liens, Restricted Payments, fundamental changes and Dispositions permitted under by Section 10.610.1 (other than Sections 10.1(d), 10.1(e) and 10.1(g)(ii)), 10.2, 10.3 (other than Section 10.3(j)), 10.4 (other than Section 10.4(d)), 10.6 (other than Section 10.6(f)), 10.7 or 10.8, as applicable;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends Restricted Payments to the extent permitted to be made to such parent in accordance with Section 10.6; provided that the aggregate amount of such loans and advances shall reduce the ability of the Borrower and the Restricted Subsidiaries to make Restricted Payments under the applicable clauses of Section 10.6 by such amount;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger merger, amalgamation or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger merger, amalgamation or consolidation;
(s) Investments in Hedge Hedging Agreements permitted by Section 10.1;
(t) Investments in or by a Receivables Entity or a Securitization Subsidiary arising out of of, or in connection with with, any Permitted Receivables Financing or Qualified Securitization Financing, as applicable; provided that any such Investment in a Receivables Entity or a Securitization Subsidiary is in the form of a contribution of additional Receivables Facility Assets or Securitization Assets, as applicable, or as equity;
(u) Investments in the ordinary course consisting of business in connection with Settlementsdeposits of cash and Cash Equivalents as collateral support permitted under Section 10.2;
(v) other Investments, that, Investments not to exceed an amount equal to (x) the Available Equity Amount at the time each such Investment is Investments are made plus (y) the Available Amount at the time such Investments are made, provided that in respect of any Investments made in reliance of clause (ii) of the definition of “Available Amount”, no Event of Default shall have occurred and be continuing or would result therefrom;
(w) other Investments in an amount at any one time outstanding not to exceed an amount equal to the sum greater of (x) $750,000,000 plus 160,000,000 and (y) if 20% of Consolidated EBITDA for the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, most recently ended Test Period (calculated on a Pro Forma Basis, ); provided that up to an amount equal to the making greater of such Investment, (i) $80,000,000 and (ii) 10% of Consolidated EBITDA for the Applicable Amount plus most recently ended Test Period (zcalculated on a Pro Forma Basis) may be made in the Applicable Equity Amount at such timeform of Disposition of intellectual property by a Credit Party to a Restricted Subsidiary that is not a Credit Party;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing purchases and acquisitions of intellectual property with other Persons assets and services in the ordinary course of business;
(y) Investments constituting contributions in the ordinary course of business consisting of Article 3 endorsements for collection or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; anddeposit and Article 4 customary trade arrangements with customers consistent with past practice;
(z) Investments made as a part of, or in connection with or to otherwise fund the Transactions;
(aa) contributions in connection with compensation arrangements to a “rabbi” trust for the benefit of employees, directors, partners, members, consultants, independent contractors or other service providers or other grantor trust subject to claims of creditors in the case of a bankruptcy of the Borrower or any of its Restricted Subsidiaries;
(bb) Investments relating to pension trusts;
(cc) Investments in Similar Business in an amount at any one time outstanding not to exceed an amount equal to the greater of (x) $160,000,000 and (y) 20% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis);
(dd) Investments in connection with Permitted Reorganizations;
(ee) Investments in deposit accounts, commodities and securities accounts opened in the ordinary course of business;
(ff) Investments solely to the extent such Investments reflect an increase in the value of Investments otherwise permitted under this Agreement;
(gg) Investments in prepaid expenses, negotiable instruments held for collection and lease, utility and workers compensation, performance and similar deposits entered into as a result of the operations of the business in the ordinary course of business;
(hh) Term Loans repurchased by the Borrower or a Restricted Subsidiary pursuant to and in accordance with Section 13.6(g); and
(ii) other Investments in an unlimited amount, provided that the Borrower shall be in compliance on a Pro Forma Basis with a Consolidated Total Net Leverage Ratio not greater than 2.8 to 1.0. Notwithstanding the foregoing, no Investment consisting of or resulting from any transfer or other Disposition of any intellectual property by a Credit Party in any Restricted to a Subsidiary that is not a Credit Party may be made except pursuant to (i) Section 10.5(l) (solely in an aggregate amount not respect of Dispositions permitted by Section 10.4(e) or (g)) or (ii) the proviso to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness DateSection 10.5(w).
Appears in 1 contract
Limitation on Investments. The (a) [Reserved].
(b) During a Credit Rating Trigger Period, the Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to make any Investment except:
(ai) extensions of trade credit and asset purchases of assets and services (including purchases of inventory, supplies and materials) in the ordinary course of business;
(bii) Investments in assets that were constituted Permitted Investments when at the time such Investments were made;
(ciii) loans and advances to officers, directors directors, employees and employees consultants of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash cash) and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,00023,000,000;
(div) (A) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date as set forth on Schedule 11.5, (B) Investments existing on the Effective Date of the Borrower or any Subsidiary in any other Subsidiary and (C) any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (div) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateset forth on Schedule 11.5;
(ev) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(fvi) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents (other than Disqualified Stock not otherwise permitted by Section 11.1) of Holdingsthe Borrower (or any direct or indirect parent thereof);
(gvii) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties[reserved];
(hviii) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (iiA) Investments in joint ventures (regardless respect of the form of legal entity) or similar Persons that do not constitute Restricted SubsidiariesPermitted Acquisitions, (iiiB) Investments in Merchant Acquisition respect of Royalty Trusts and Processing Alliances (regardless of the form of legal entity) master limited partnerships and (ivC) other Investments in Subsidiaries that are an amount not Credit Parties)to exceed $250,000,000 in the aggregate, in each case valued at the fair market value Fair Market Value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (iSection 11.5(b)(viii) that, at the time each such Investment is made, would not exceed the sum of (xa) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) 100,000,000 plus (yb) if so long as (i) no Default or Event of Default has occurred and is continuing at the Borrower time of any such Investment or would result therefrom and (ii) the Fixed Charge Coverage Ratio shall be in compliance with the Senior Secured Leverage Test, both before and no less than 2.25 to 1.00 after giving effectpro forma effect to such Investment and any transactions taken in connection therewith (including, on a Pro Forma Basis to the making of such Investmentwithout limitation, the Applicable incurrence of any Indebtedness), the Available Amount at such time plus (zc) the amount of any Net Cash Proceeds of any issuance or sale of Stock (other than Disqualified Stock) of the Borrower (provided that any Investments made with such Net Cash Proceeds under this Section 11.5(b)(viii) are made within one hundred and eighty (180) calendar days of the issuance of such Stock) (such amount, an “Equity Funded Investment”); provided that the foregoing limits shall not apply during the period in which, and Investments may be made pursuant to this Section 11.5(b)(viii) without duplication of limit at any amount that increased such time during which, after giving pro forma effect to the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect making of any such Investment Investment, (which amount referred 1) no Event of Default shall have occurred and be continuing and (2) Liquidity is not less than 10% of the then-effective First Lien First Out Revolving Loan Limit (on a pro forma basis after giving effect to such Investment) or, after the Discharge of First Lien First Out Obligations, cash on the balance sheet of the Borrower of at least $220,000,000; provided, further, that (x) intercompany current liabilities incurred in the ordinary course of business and consistent with past practices, in connection with the cash management operations of the Borrower and the Subsidiaries shall not be included in calculating any limitations in this subclause paragraph at any time and (zy) for the avoidance of doubt, any prepayment, repurchase, redemption or defeasance of Existing Senior Notes, 2016 Term Loans, any Permitted Junior Indebtedness or any Permitted Additional Debt shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such timealso be subject to compliance with Section 11.7;
(jix) Investments constituting non-cash proceeds of Dispositions of assets to the extent such Disposition is permitted by Section 10.411.4;
(kx) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(mxi) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends Restricted Payments to the extent permitted to be made to such parent in accordance with Section 10.611.6;
(nxii) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(oxiii) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(pxiv) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of business;
(qxv) Guarantee Obligations guarantee obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(rxvi) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Effective Date otherwise in accordance with this Section 10.5 11.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(sxvii) Investments in Industry Investments and in interests in additional Oil and Gas Properties and gas gathering systems related thereto or Investments related to farm-out, farm-in, joint operating, joint venture, joint development or other area of mutual interest agreements, other similar industry investments, gathering systems, pipelines or other similar oil and gas exploration and production business arrangements whether through direct ownership or ownership through a joint venture or similar arrangement; provided that any asset, property, equity interests or other interest that (a) is property described in clauses (d) or (f) of the definition of Excluded Stock, (b) has an aggregate value with all such property in excess of $50,000,000 and (c) is received in connection with any Investment under this clause (xvii) shall be pledged as Collateral except (i) to the extent such Investment is made in connection with a farm-in, farm-out or Development Joint Venture or (ii) to the extent otherwise excluded pursuant to clause (b) of the definition of Excluded Stock;
(xviii) Investments in Hedge Agreements permitted by Section 10.111.1 and Section 11.10;
(txix) Investments arising out consisting of or in connection with any Permitted Receivables FinancingIndebtedness, fundamental changes, Dispositions and Restricted Payments permitted under Sections 11.1, 11.3, 11.4 and 11.6 (other than 11.6(c));
(uxx) Investments by the Borrower or any Subsidiary in the ordinary course of business in connection with Settlementsany Subsidiary;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(xxxi) Investments consisting of licensing of intellectual property pursuant to joint marketing arrangements with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(zxxii) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party office buildings or other similar commercial real property useful for the operations of the Borrower in an aggregate amount not to exceed $50,000,000 in the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Dateaggregate.
Appears in 1 contract
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to (i) purchase or acquire (including pursuant to any merger, consolidation or amalgamation with a person that is not a Wholly owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of any other Person, (ii) make any Investment loans or advances to or guarantees of the Indebtedness of any other Person, or (iii) purchase or otherwise acquire (in one transaction or a series of related transactions) (x) all or substantially all of the property and assets or business of another Person or (y) assets constituting a business unit, line of business or division of such Person (each, an “Investment”), except:
(a) extensions of trade credit and asset purchases of assets and services (including purchases of inventory, supplies and materials) in the ordinary course of business;
(b) Investments in assets that were constituted Permitted Investments when at the time such Investments were made;
(c) loans and advances to officers, directors directors, employees and employees consultants of the Borrower (or any direct or indirect parent thereof) or any of its Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents Equity Interests of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents Equity Interests shall be contributed to the Borrower in cash cash) and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,00020,000,000;
(di) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Closing Date as set forth on Schedule 10.5(d), (ii) Investments existing on the First Lien Closing Date of the Borrower or any Subsidiary in any other Subsidiary and (iii) any extensions, modifications, replacements, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made as of the First Lien Closing Date (other than (a) pursuant to legally binding written commitments an increase as required by the terms of any such Investment as in existence on, on the 2014 July Repricing Effective DateClosing Date or (b) as otherwise permitted under this Section 10.5);
(e) Investments received any Investment acquired by the Borrower or any of its Restricted Subsidiaries: (i) in exchange for any other Investment, accounts receivable or endorsements for collection or deposit held by the Borrower or any such Restricted Subsidiary in each case in connection with the bankruptcy or as a result of a bankruptcy, workout, reorganization of suppliers or customers and in recapitalization of, or settlement of delinquent obligations ofaccounts and disputes with or judgments against, and the issuer of such other disputes withInvestment or accounts receivable (including any trade creditor or customer), customers arising (ii) in satisfaction of judgments against other Persons, (iii) as a result of a foreclosure by the ordinary course Borrower or any of business or upon foreclosure its Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured InvestmentInvestment in default or (iv) as a result of the settlement, compromise or resolution of litigation, arbitration or other disputes with Persons who are not Affiliates;
(f) Investments to the extent that payment for such Investments is made with Stock Qualified Equity Interests of the Borrower or Stock Equivalents of Holdingsa Parent Entity;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between Guarantor or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred by any Guarantor in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by Guarantor in the Borrower acting in good faith) of each such Investment at the time each such Investment was madeor any other Restricted Subsidiary; provided, would not exceed the sum of (x) $1,000,000,000, when taken together with that Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result Guarantor in the proceeds Borrower or any Guarantor shall be subordinated in right of payment to the initial Investment being invested in one or more Credit PartiesLoans;
(h) Subject to the prior written consent of the Administrative Agent and the Required Lenders in their sole discretion, Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time[Reserved];
(j) Investments in an aggregate amount outstanding pursuant to this Section 10.5(j) not to exceed $5,000,000;
(k) Investments constituting promissory notes and other non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.410.4 or any other disposition of assets not constituting a Disposition;
(kl) Investments made to repurchase or retire Stock or Stock Equivalents Equity Interests of the Borrower or any direct or indirect parent thereof owned by the Sponsor or its Affiliates or any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(lm) Investments consisting of dividends Restricted Payments permitted under Section 10.610.6 (other than Section 10.6(c) and 10.6(f)(viii));
(mn) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends Restricted Payments to the extent permitted to be made to such parent in accordance with Section 10.610.6(b), (f) or (i);
(no) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(op) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practicespractices or industry practice;
(pq) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of business;
(qr) Guarantee Obligations guarantee obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Capitalized Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(rs) Investments held by a Person acquired (including by way of merger merger, amalgamation or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger merger, amalgamation or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.
Appears in 1 contract
Samples: Credit Agreement (Vine Energy Inc.)
Limitation on Investments. The US Borrower will not, and will not permit any of the Restricted Subsidiaries to to, make any Investment advance, loan, extensions of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets of, or make any other investment in, any Person, except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madeInvestments;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) Parent or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s to finance the purchase of Stock or Stock Equivalents capital stock of the Borrower Parent (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, that the amount of such loans and advances used to acquire such Stock or Stock Equivalents capital stock shall be contributed by Holdings to the US Borrower in cash as common equity using the proceeds of prior contributions of common equity by Parent to PIK Holdco and (iii) for purposes not described in the foregoing subclauses (iby PIK Holdco to Holdings, respectively) and (ii); provided that the ) for additional purposes not contemplated by subclause (i) above in an aggregate principal amount at any time outstanding pursuant with respect to this subclause clause (iiiii) shall not exceed exceeding $10,000,000;
(d) Investments investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Closing Date and listed on Schedule 10.5 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of any Investment made all investments pursuant to this clause (d) is not increased at any time above the amount of such Investment investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Closing Date;
(e) Investments investments in Hedge Agreements permitted by Section 10.1(h);
(f) investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investmentbusiness;
(fg) Investments investments to the extent that payment for such Investments investments is made solely with Stock or Stock Equivalents capital stock of Holdingsany of the Parent Companies;
(gh) Investments investments constituting non-cash proceeds of sales, transfers and other dispositions of assets to the extent permitted by Section 10.4;
(i) investments in any Guarantor (aother than Holdings), the US Borrower, the UK Borrower or any Foreign Subsidiary Guarantor;
(j) investments constituting Permitted Acquisitions, provided that the aggregate amount of any such investment, as valued at the fair market value of such investment at the time each such investment is made, made by the US Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit PartyForeign Subsidiary, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date such Restricted Foreign Subsidiary does not become a Foreign Subsidiary Guarantor pursuant to this subclause (ii)Section 9.11 and does not enter into the guarantee and collateral arrangements contemplated thereby, when valued at shall not exceed the fair market value (determined by the Borrower acting in good faith) of each such Investment Available Amount at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time investment plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment investment valued at the fair market value of such Investment investment at the time such Investment investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4);
(k) Investments investments in the equity interests of one or more newly formed persons that are received in consideration of the contribution by the US Borrower or its applicable Restricted Subsidiaries of assets (including capital stock) to such person or persons, provided that (i) the fair market value of such assets, determined on arms-length basis, so contributed pursuant to this paragraph (k) shall not in the aggregate exceed $50,000,000, (ii) with respect to investments in Foreign Joint Ventures, the sum of all investments in Foreign Joint Ventures made pursuant to this Section 10.5 (k) prior to the date thereof and all investment in Foreign Joint Ventures made pursuant to Section 10.5(m) below prior to the date thereof, when taken together, as valued at the fair market value of such investment at the time each such investment is made, does not exceed $100,000,000 plus an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such investment (which amount shall not exceed the amount of such investment valued at the fair market value of such investment at the time such investment was made) in the aggregate and (iii) in respect of each such contribution, an Authorized Officer of the US Borrower shall certify, in a form to be agreed upon by the US Borrower and the Administrative Agent (x) after giving effect to such contribution, no Default or Event of Default shall have occurred and be continuing, (y) the fair market value of the assets so contributed and (z) that the requirements of paragraph (i) of this proviso remain satisfied;
(l) investments made to repurchase or retire Stock or Stock Equivalents common stock of the Borrower or any direct or indirect parent thereof Parent owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (Parent Companies, Holdings or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6the US Borrower;
(m) loans additional investments (including investments in Minority Investments and advances to any direct or indirect parent Unrestricted Subsidiaries), as valued at the fair market value of such investment at the Borrower time each such investment is made, in lieu of, and an aggregate amount at the time of such investment not in excess of the Available Amount at such time plus an amount ofequal to any repayments, dividends interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such investment (which amount shall not exceed the amount of such investment valued at the fair market value of such investment at the time such investment was made), provided, that with respect to investments in Foreign Joint Ventures, the sum of all investments in Foreign Joint Ventures made pursuant to Section 10.5 (k) above prior to the extent permitted date thereof and all investment in Foreign Joint Ventures made pursuant to be made this Section 10.5(m) prior to the date thereof, when taken together, as valued at the fair market value of such parent investment at the time each such investment is made, does not exceed $100,000,000 plus an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in accordance with Section 10.6cash in respect of any such investment (which amount shall not exceed the amount of such investment valued at the fair market value of such investment at the time such investment was made) in the aggregate;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;investments permitted under Section 10.6; and
(o) Investments contributions to a "rabbi" trust within the meaning of Revenue Procedure 92-64 or contributions to a trust which is qualified under Section 401(a) of the Code or other grantor trust subject to the claims of creditors in the ordinary course case of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations a bankruptcy of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness DateUS Borrower.
Appears in 1 contract
Limitation on Investments. The Borrower Company will not, and will not permit any of the Restricted Subsidiaries to to, make any advance, loan, extensions of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets of, or make any other Investment in, any Person, except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madeInvestments;
(c) loans and advances to officers, directors and employees of the Borrower Company (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower Company (or any direct or indirect parent thereof); provided that, ) to the extent such loans and advances are made in cash, that the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be are contributed to the Borrower Company in cash and (iii) for purposes not described in the foregoing subclauses clauses (i) and (ii); provided that the , in an aggregate principal amount outstanding pursuant not to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence oncontemplated as of, the 2014 July Repricing Effective Date date hereof and listed on Schedule 10.5 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of any Investment made all Investments pursuant to this clause (d) is not increased at any time above the amount of such Investment Investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Datedate hereof;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) after a Qualifying IPO of the Company, Investments to the extent that payment for such Investments is made solely with Stock or Stock Equivalents of Holdingsthe Company;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit PartyGuarantor or the Company, (bii) between or among in Restricted Subsidiaries that are not Credit PartiesGuarantors, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect an aggregate amount pursuant to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), this clause (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) 50,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time time, and (iii) by Credit Parties in any Restricted Subsidiary Subsidiaries that is are not a Credit Party Guarantors so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit PartiesGuarantors;
(h) Investments constituting Permitted Acquisitions;
(i) (i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, ) and (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons entities that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case case, as valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) 150,000,000, plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.
Appears in 1 contract
Samples: First Lien Credit Agreement (IPC Systems Holdings Corp.)
Limitation on Investments. The Holdings and the Borrower will not, and will not permit any of the Restricted Subsidiaries to to, make any Investment advance, loan, extensions of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets of, or make any other investment (including pursuant to any Guarantee Obligation with respect to the obligations of another Person) (“Investments”) in, any Person, except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madeInvestments;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) Parent or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s to finance the purchase of Stock or Stock Equivalents capital stock of the Borrower Parent (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, that the amount of such loans and advances used to acquire such Stock or Stock Equivalents capital stock shall be contributed by Parent to Holdings, which shall in turn contribute it to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (ias common equity) and (ii); provided that the ) for additional purposes not contemplated by subclause (i) above in an aggregate principal amount at any time outstanding pursuant with respect to this subclause clause (iiiii) shall not exceed exceeding $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Date date hereof and listed on Schedule 10.5 and any extensions, renewals or reinvestments thereofwith respect to any return therefrom (including through a repayment, so long as return of capital, interest or dividends) (but without any increase in the amount thereof and in the case of any Investment reinvestment, only if such reinvestment is made pursuant to this clause (d) is not increased at within 60 days after the date of receipt of any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Datereturned amount);
(e) Hedge Agreements permitted by Section 10.1(A)(h);
(f) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investmentbusiness;
(fg) Investments to the extent that payment for such Investments investments is made solely with Stock or Stock Equivalents capital stock of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit PartiesParent;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions sales, transfers and other dispositions of assets to the extent permitted by Section 10.4;
(ki) Investments made to repurchase or retire Stock or Stock Equivalents of (i) in the Borrower or any direct or indirect parent thereof owned Subsidiary Guarantor, (ii) Investments by any employee or Restricted Subsidiary that is not a Subsidiary Guarantor in any stock ownership plan or key employee stock ownership plan of the Borrower other Subsidiary that is not a Subsidiary Guarantor and (or any direct or indirect parent thereof);
(liii) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of by the Borrower or any Subsidiary Guarantor in any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do is not constitute Indebtedness, a Subsidiary Guarantor in each case entered into in the ordinary course of businessan aggregate principal amount not to exceed $1,000,000 at any time outstanding;
(rj) Investments held Permitted Acquisitions, provided that (i) no Event of Default shall have occurred and is continuing after giving effect to such Permitted Acquisition, (ii) on a Pro Forma Basis (x) the Fixed Charge Coverage Ratio for the most recently ended Test Period for which Section 9.1 Financials have been delivered would be at least 1.1 to 1.0, (y) average daily Availability for the period of sixty (60) consecutive days (or, if less, the number of days from and including the Effective Date to and including the date of determination) immediately preceding such Investment has been and for the period of six consecutive months immediately following such Investment is projected by a Person acquired the Borrower to be not less than the greater of (including by way 1) 20% of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence Total Commitment on the date of such acquisition, merger Permitted Acquisition and (2) $20,000,000 and (z) the fair market value of any assets acquired in any transaction that are not owned directly by the Borrower or consolidationa Subsidiary Guarantor (including a Person who becomes a Subsidiary Guarantor as a result of such Permitted Acquisition) shall be deemed to be an Investment not permitted by this clause (j);
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(vk) other Investments, provided that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before made or otherwise acquired and after giving effecteffect thereto(i) no Default shall have occurred and be continuing or would result therefrom, (ii) on a Pro Forma Basis, (x) the Fixed Charge Coverage Ratio for the most recently ended Test Period is at least 1.25 to 1.00, and (y) average daily Availability for the making period of sixty (60) consecutive days (or, if less, the number of days from and including the Effective Date to and including the date of determination) immediately preceding such Investment has been and for the period of six consecutive months immediately following such Investment is projected by the Borrower to be not less than the greater of (1) 25% of the Total Commitment on the date of such Investment, the Applicable Amount plus Investment and (z2) the Applicable Equity Amount at such time$25,000,000;
(wl) other Investments in connection with any transaction permitted by Section 10.3an amount not to exceed $5,000,000; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(ym) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments Restricted Payments permitted by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends Section 10.6 and other distributions received Guarantee Obligations permitted by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness DateSection 10.1(d)(ii).
Appears in 1 contract
Samples: Credit Agreement (Sealy Corp)
Limitation on Investments. The Borrower Obligors will not, and will not permit any of the Restricted Borrower Subsidiaries to to, make any Investment except:
(a) extensions of trade credit in the ordinary course of business and asset purchases Investments resulting from VAT and other customs arrangements by Borrower Subsidiaries with local financial institutions in various jurisdictions in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madeInvestments;
(c) loans and advances to officers, directors and employees of the Borrower any Obligor (or any direct or indirect parent thereof) or any of its Subsidiaries Borrower Subsidiary (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), ) and (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower Obligors (or any direct or indirect parent thereof); provided that, ) to the extent such loans and advances are made in cash, that the amount of such loans and advances used to acquire such Stock are directly or Stock Equivalents shall be indirectly contributed to the Borrower Parent in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000cash;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence oncontemplated as of, the 2014 July Repricing Effective Closing Date and listed on Schedule 9.5 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of any Investment made all Investments pursuant to this clause (d) is not increased at any time above the amount of such Investments existing on the Closing Date; provided that the amount of any such Investment existing on, or made pursuant to legally binding written commitments may be increased (i) as required by the terms of such Investment as in existence on, on the 2014 July Repricing Effective DateClosing Date or (ii) as otherwise permitted under this Agreement;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdingsan Obligor or any of its direct or indirect parent companies;
(gi) Investments (i) (a) by the Borrower any Obligor or any Restricted Borrower Subsidiary in any Credit Party, Obligor; (bii) any Borrower Subsidiary that is not an Obligor in any Obligor or (iii) between or among Restricted Borrower Subsidiaries that are not Credit Parties, and Obligors and/or the Parent Subsidiaries;
(ch) consisting Investments by any Obligor in any subsidiary of intercompany Investments incurred the Parent in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment so long as at the time each of such Investment was made, would not exceed the sum of (xi) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time Payment Conditions are satisfied and (iiiii) by Credit Parties in such investments do not exceed at any Restricted Subsidiary that is not a Credit Party so long as such Investment is part time an outstanding aggregate amount of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;€10,000,000.
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued so long as at the fair market value (determined by the Borrower acting in good faith) time of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such timePayment Conditions are satisfied;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by clauses (b) and (c) of Section 10.49.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower an Obligor in lieu of, and not in excess of the amount of, dividends to the extent Restricted Payments permitted to be made to such parent Person in accordance with Section 10.69.6;
(nl) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(om) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(qn) Guarantee Obligations of the Borrower Obligors or any Restricted Borrower Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(ro) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 9.5 to the extent that such Investments do not constitute a majority of the assets acquired and were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(wp) Investments in connection with any transaction the Transactions;
(q) Indebtedness under Hedge Agreements permitted by under Section 10.39.1(h);
(r) Investments that would otherwise be permitted as Restricted Payments under Section 9.6(e)(iii); and
(xs) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions unsecured Guarantee Obligations of any Foreign Subsidiary Obligors in respect of Indebtedness permitted by Section 9.1 (other than pursuant to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness DateSection 9.1(b)).
Appears in 1 contract
Samples: Abl Credit Agreement (Univar Inc.)
Limitation on Investments. The Borrower will notMake any advance (other than demand deposits), and will not loan, extension of credit or capital contribution to, or purchase for value any Capital Stock, bonds, notes, debentures or other securities of, any Person (collectively, “Investments”), or permit any Restricted Subsidiary to do any of the Restricted Subsidiaries to make any Investment foregoing, except:
(a) Investments constituting advances and extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madein cash and Cash Equivalents;
(c) loans Investments existing on the Closing Date and advances described on Schedule 9.7 and any renewals, refinancings or restructurings thereof, provided that the original amount of any such Investment is not increased (except to officers, directors and employees of the Borrower (or extent any direct or indirect parent thereof) or any of its Subsidiaries such increase would (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), be permitted under another provision of this subsection 9.7 or (ii) in connection with such Person’s purchase of Stock be permitted under subsection 9.2, subsection 9.4 or Stock Equivalents of the Borrower (or any direct or indirect parent thereofsubsection 9.12); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective DatePermitted Business Acquisitions;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations ofconstituting loans, advances and other disputes withextensions of credit to directors, customers arising in officers and employees of the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower Company or any Restricted Subsidiary in any Credit Partyof its Subsidiaries for travel, (b) between or among Restricted Subsidiaries that are not Credit Parties, entertainment and (c) consisting of intercompany Investments incurred relocation expenses in the ordinary course of business in connection with an aggregate amount for the cash management operations Company and its Subsidiaries not to exceed $1,000,000 at any one time outstanding;
(including with respect to intercompany self-insurance arrangementsf) among Investments by the Borrower and the Company in its Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments investments by Restricted Subsidiaries in the Company and in other Restricted Subsidiaries that Subsidiaries;
(g) Investments made as a result in the proceeds of the initial Investment being invested receipt of non-cash consideration (including Indebtedness) received in one or more Credit Partiesconnection with any Disposition permitted under subsection 9.5;
(h) Investments constituting Permitted Acquisitionsarising from the repurchase or redemption of Capital Stock or Indebtedness or the conversion of Indebtedness to Capital Stock in any transaction or manner not otherwise prohibited under this Agreement;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together made with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal respect to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such timePlan;
(j) Investments constituting non-cash proceeds of Dispositions of assets to (i) arising from or in connection with transactions by the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower Company or any direct Restricted Subsidiary with customers, suppliers, vendors or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit other account debtors in the ordinary course of business, including endorsements of negotiable instruments and Investments debt obligations and (ii) made or received in satisfaction connection with the bankruptcy, reorganization or partial satisfaction thereof from financially troubled liquidation of, or the settlement of delinquent obligations or disputes with, any customers, suppliers, vendors or other account debtors and other credits to suppliers in the ordinary course of businessdebtors;
(ok) Investments in the ordinary course arising as a result of business consisting of endorsements for collection any transaction permitted under subsection 9.2 or deposit and customary trade arrangements with customers consistent with past practicessubsection 9.4;
(pl) advances of payroll payments to employees in any other Investments by the ordinary course of business;
(q) Guarantee Obligations of the Borrower Company or any Restricted Subsidiary of leases in any other Person (other than Capital Leasesany Restricted Subsidiary) or of other obligations that do not constitute Indebtedness, permitted under subsection 9.12; and
(m) Investments in each case joint ventures entered into in the ordinary course of business;
(r) Investments held by a Person acquired business (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in the Company or any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Dateany joint venture or similar arrangement with Navis Co., Ltd.).
Appears in 1 contract
Samples: Credit Agreement (Harman International Industries Inc /De/)
Limitation on Investments. The Parent Borrower will not, and will not permit any of the Restricted Subsidiaries to make any Investment except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madeInvestments;
(c) loans and advances to officers, directors and employees of the Parent Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries or to Physicians with whom the Parent Borrower or any of its Subsidiaries have contractual relationships (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Parent Borrower (or any direct or indirect parent thereof); provided that, ) to the extent such loans and advances are made in cash, that the amount of such loans and advances used to acquire such Stock are directly or Stock Equivalents shall be indirectly contributed to the Parent Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the , in an aggregate principal amount outstanding pursuant to this subclause (iii) shall not to exceed $10,000,00020,000,000;
(d) Investments existing on, or made contemplated as of, the Closing Date and either (x) constituting Indebtedness that is permitted pursuant to legally binding written commitments in existence on, Section 10.1(g)(ii) or (y) listed on Schedule 10.5 to the 2014 July Repricing Effective Date Original Credit Agreement and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of any Investment made all Investments pursuant to this clause (d) is not increased at any time above the amount of such Investment Investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Closing Date;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings or Hercules Holdings;
(g) Investments (i) (a) by the Parent Borrower or any Restricted Subsidiary in any U.S. Credit Party, (b) between or among European Credit Parties, (c) between or among 1993 Indenture Restricted Subsidiaries, (d) between or among Restricted Subsidiaries that are not neither Credit PartiesParties nor 1993 Indenture Restricted Subsidiaries, and (ce) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Parent Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by (A) a Credit Party in a Subsidiary that is not a Credit Party or (B) a U.S. Credit Party in a European Credit Party is in the form of an intercompany loan or advance and the Parent Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable)) and (f) by the Parent Borrower or any Restricted Subsidiary in any Restricted Subsidiary, provided that such Investment is used, directly or as a result of substantially concurrent transfers, to repay intercompany Indebtedness owed to any U.S. Credit Party and (ii) (a) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent (b) by 1993 Indenture Restricted Subsidiaries in any Restricted Subsidiary that the aggregate amount of all Investments made on is not a 1993 Indenture Restricted Subsidiary, (c) by any Restricted Subsidiary that is neither a Credit Party nor a 1993 Indenture Restricted Subsidiary in any European Credit Party or after the 2014 July Repricing Effective Date pursuant to this subclause any 1993 Indenture Restricted Subsidiary or (ii)d) by U.S. Credit Parties in a European Credit Party, when in each case valued at the fair market value (determined by the Parent Borrower acting in good faith) of each such Investment at the time each such Investment was made, in an aggregate amount pursuant to this subclause (ii) that, at the time each such Investment is made, would not exceed the sum of (x) the excess of (A) the greater of (I) $1,000,000,000, when taken together with 3,000,000,000 and (II) 12% of Total Assets over (B) the amount of Investments outstanding at such time in reliance on Section 10.5(i)(x10.5(i)(ii)(x) at such time plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Partiestime;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, Subsidiaries and (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Parent Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) the excess of (A) the greater of (I) $1,000,000,000 when taken together with 3,000,000,000 and (II) 12% of Total Assets over (B) the amount of Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) at such time, plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time);
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Parent Borrower or any direct or indirect parent thereof owned by any employee or any employee stock ownership plan or key employee stock ownership plan of the Parent Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances advance to any direct or indirect parent of the Parent Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Parent Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments by 1993 Indenture Restricted Subsidiaries of accounts receivable and related assets in Hedge Agreements permitted by Section 10.1ABL Entities;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments by the Parent Borrower in the ordinary course European Subsidiary Borrower arising as a result of business any payment made by the Parent Borrower in connection with Settlementsrespect of European-1 Tranche Term Loans pursuant to Section 5.2(a)(ii);
(v) other Investments, that, Investments by the Parent Borrower and the Restricted Subsidiaries in any joint venture (regardless of the form of legal entity) or Restricted Subsidiary in an aggregate amount at the any time each such Investment is made, would outstanding not to exceed the sum of (xA) $750,000,000 600,000,000 plus (yB) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable JV Distribution Amount plus (zC) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (C) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made); provided, that the aggregate amount of Investments made in reliance on subclause (B) or (C) above by (i) the Applicable Equity Amount at U.S. Credit Parties shall not exceed the aggregate of the amounts referred to in such timesubclauses that were directly or indirectly received by U.S. Credit Parties and (ii) the European Credit Parties shall not exceed the aggregate of the amounts referred to in such subclauses that were directly or indirectly received by European Credit Parties;
(w) Investments in connection with any transaction permitted redemption by Section 10.3; andHealthtrust, or transfer to Healthtrust or the Parent Borrower, of shares of Stock of Healthtrust held by Columbia—SDH and Epic Properties;
(x) Investments consisting intercompany transfers of licensing creditor positions (i) in respect of intellectual property with Indebtedness outstanding pursuant to Sections 10.1(a), 10.1(g)(ii) or 10.1(i), and (ii) in respect of any other Persons intercompany Indebtedness; provided that the transfer of credit positions described in the ordinary course this clause (ii) is used, directly or as a result of business;substantially concurrent transfers, to repay intercompany Indebtedness owed to any U.S. Credit Party; and
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary Indebtedness outstanding pursuant to another Foreign Subsidiary; and
(zSection 10.1(a)(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date10.1(i)(z).
Appears in 1 contract
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries to make Make any Investment exceptexcept for:
(a) extensions of trade credit and credit, asset purchases in (including purchases of inventory, supplies and materials) and the ordinary course licensing or contribution of businessintellectual property pursuant to joint marketing arrangements with other Persons;
(b) Investments that were Permitted Investments when such Investments were madeCash Equivalents;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Restricted Subsidiaries (i) for reasonable to finance the purchase of Capital Stock of (x) if the Holdings Reorganization does not occur, the Borrower, and customary business-related travel(y) if the Holdings Reorganization does occur, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances)Holdings, (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, that the amount of such loans and advances used to acquire such Capital Stock or Stock Equivalents shall be contributed to the Borrower in cash as common equity), (ii) for reasonable and customary business related travel expenses, moving expenses and similar expenses, and (iii) for additional purposes not described in the foregoing subclauses contemplated by subclause (i) and or (ii); provided that the ) above in an aggregate principal amount at any time outstanding pursuant with respect to this subclause clause (iii) shall not exceed exceeding $10,000,0005,000,000 in any fiscal year (with unused amounts in any such period being carried-forward to any succeeding fiscal year);
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Closing Date and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of any Investment made all Investments pursuant to this clause (d) is not increased at any time above the amount of such Investment Investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Closing Date;
(e) Investments in Hedging Obligations to the extent not prohibited by Section 6.01;
(f) Investments received in connection with the bankruptcy or reorganization of trade creditors, trade counterparties, suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investmentcustomers;
(fg) Investments to the extent that payment for such Investments is made with Capital Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000if the Holdings Reorganization does not occur, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus the Borrower, and (y) if the Borrower shall be in compliance with the Senior Secured Leverage TestHoldings Reorganization does occur, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit PartiesHoldings;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiariesany Restricted Subsidiary, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case as valued at the fair market value (determined by the Borrower acting in good faith) Fair Market Value of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time such Investment is made, would not exceed the Retained Prepayment Amount at such time;
(i) Investments (including in the form of loans) in the Borrower or any Subsidiary Guarantor;
(j) Investments constituting Permitted Acquisitions;
(k) Investments made to repurchase or retire common stock of the Borrower owned by any employee stock ownership plan or key employee, directors and officers, or other stock ownership plans of the Borrower;
(l) (i) additional Investments (including Investments in Excluded Subsidiaries, Minority Investments and Unrestricted Subsidiaries) and (ii) Investments in joint ventures or similar entities that do not constitute Restricted Subsidiaries, in each case as valued at the Fair Market Value of such Investment at the time each such Investment is made, (A) in an aggregate amount that, at the time such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) 500,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Available Amount at such time plus (z) without duplication of any amount that increased to the JV Distribution extent such amounts do not increase the Available Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value Fair Market Value of such Investment at the time such Investment was made) plus and an amount equal to any letters of credit, guarantees and other contingent credit support that constitute Investments that were made pursuant to this clause (aal) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
such letters of credit, guarantees or other contingent credit support are cancelled, expire or are otherwise terminated without any payment being required thereon, and/or (kB) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature case of accounts receivable or notes receivable arising from the grant of trade credit Investments described in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
clause (oii) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of above only that are made by the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtednessany Excluded Subsidiary), in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, an aggregate amount that, at the time each such Investment is made, would be permitted to be expended as a Capital Expenditure under Section 6.12, to the extent that (x) the applicable joint venture owns an interest in assets the addition of which would have been a Capital Expenditure if acquired or constructed, and owned, directly by the Borrower or a Restricted Subsidiary (other than any Excluded Subsidiary) and (y) the ability of the Borrower and/or one or more Restricted Subsidiaries to receive cash flows attributable to its interest therein is not restricted by contract, Applicable Law or otherwise; provided, however, that in determining whether any Investments in joint ventures or similar entities that do not constitute Restricted Subsidiaries made in cash or Cash Equivalents would be permitted under Section 6.05(l)(ii), the maximum aggregate amount of such Investments made in cash or Cash Equivalents to be allocated to clause (ii)(A)(x) above only shall not exceed $300,000,000; provided, further, that the face amount of any Letters of Credit issued for the benefit of a Subsidiary of the Borrower that (x) is not a Subsidiary Guarantor or (y) is a Minority Interest (whether constituting an Investment or not) shall, only for as long as such Letter of Credit is outstanding, reduce the amount of Investments permitted to be made under this Section 6.05(l) by an amount equal to the face amount of such Letter of Credit.
(m) Investments in any Excluded Subsidiary by another Excluded Subsidiary, other than any such Investments made with the proceeds of Non-Recourse Indebtedness; provided, however, that (i) Investments in an Excluded Subsidiary with the proceeds of Non-Recourse Indebtedness by another Excluded Subsidiary that is a direct or indirect parent of such Excluded Subsidiary shall be permitted and (ii) Investments in an Excluded Subsidiary with the proceeds of Non-Recourse Indebtedness by another Excluded Subsidiary that is formed solely for the purposes of incurring such Non-Recourse Indebtedness, that has no other assets other than de minimis assets and that has the same direct parent as such Excluded Subsidiary shall be permitted;
(n) the Acquisition Transactions;
(o) the contribution of any one or more of the Specified Facilities to a Restricted Subsidiary that is not a Loan Party;
(p) Investments that are received in consideration of the contribution by the Borrower or a Restricted Subsidiary of assets (other than cash, Cash Equivalents or Core Collateral), valued at the Fair Market Value of such Investment at the time such Investment is made, in an aggregate amount that, at the time such Investment is made, would not exceed the Fair Market Value of the sum of (i) all Capital Stock of (x) $750,000,000 plus if the Holdings Reorganization does not occur, the Borrower, and (y) if the Borrower shall be Holdings Reorganization does occur, Holdings, paid as consideration in compliance connection with a Permitted Acquisition (valued at the Senior Secured Leverage Test, both before time of consummation of such Permitted Acquisition) consummated after the Closing Date and after giving effect, on a Pro Forma Basis, or prior to the making date of such InvestmentInvestment so long as all Equity Interests and other assets that were acquired by the Borrower or a Restricted Subsidiary through such Permitted Acquisition have been pledged to the Collateral Agent to the extent required under Section 5.09 (provided that such acquired assets shall not be become Excluded Assets pursuant to clauses (viii) or (xiii) of the definition thereof) and (ii) all assets that (A) were contributed, without consideration, by an Excluded Subsidiary to the Applicable Amount plus Borrower or a Subsidiary Guarantor after the Closing Date (zvalued at the time of such contribution) or (B) were owned at the Applicable Equity Amount time by an Excluded Subsidiary that became a Subsidiary Guarantor after the Closing Date and that have been pledged to the Collateral Agent (valued at the time of such timeguarantee); provided that any amounts specified to in clauses (i) and (ii) above shall not be used to increase any amounts set forth in the other clauses of this Section 6.05;
(wq) (i) Investments permitted under Section 6.06 and (ii) Guarantees permitted under Section 6.01;
(r) Investments consisting of Seller’s Retained Interests in connection with any transaction a South Central Securitization permitted by Section 10.36.04 and any servicing fees and other similar rights related to the South Central Securitization permitted by Section 6.04;
(s) Investments pursuant to transactions described Section 6.08(b)(xix); and
(xt) Investments consisting of licensing of intellectual property with other Persons in existing on the ordinary course of business;
(y) Second Restatement Date that were made after the Closing Date, but only to the extent such Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed reduced the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since Available Amount at the Initial Effectiveness Datetime made.
Appears in 1 contract
Samples: Credit Agreement (NRG Energy, Inc.)
Limitation on Investments. The (a) [Reserved].
(b) During a Credit Rating Trigger Period, the Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to make any Investment except:
(ai) extensions of trade credit and asset purchases of assets and services (including purchases of inventory, supplies and materials) in the ordinary course of business;
(bii) Investments in assets that were constituted Permitted Investments when at the time such Investments were made;
(ciii) loans and advances to officers, directors directors, employees and employees consultants of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash cash) and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,00020,000,000;
(div) (A) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date as set forth on Schedule 11.5, (B) Investments existing on the Effective Date of the Borrower or any Subsidiary in any other Subsidiary and (C) any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (div) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateset forth on Schedule 11.5;
(ev) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(fvi) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents (other than Disqualified Stock not otherwise permitted by Section 11.1) of Holdingsthe Borrower (or any direct or indirect parent thereof);
(gvii) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties[Reserved];
(hviii) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (iiA) Investments in joint ventures (regardless respect of the form of legal entity) or similar Persons that do not constitute Restricted SubsidiariesPermitted Acquisitions, (iiiB) Investments in Merchant Acquisition respect of Royalty Trusts and Processing Alliances (regardless of the form of legal entity) master limited partnerships and (ivC) other Investments in Subsidiaries that are an amount not Credit Parties)to exceed $250,000,000 in the aggregate, in each case valued at the fair market value Fair Market Value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (iSection 11.5(b)(viii) that, at the time each such Investment is made, would not exceed the sum of (xa) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) 100,000,000 plus (yb) if so long as (i) no Default or Event of Default has occurred and is continuing at the Borrower time of any such Investment or would result therefrom and (ii) the Fixed Charge Coverage Ratio shall be in compliance with the Senior Secured Leverage Test, both before and no less than 2.25 to 1.00 after giving effectpro forma effect to such Investment and any transactions taken in connection therewith (including, on a Pro Forma Basis to the making of such Investmentwithout limitation, the Applicable incurrence of any Indebtedness), the Available Amount at such time plus (zc) the amount of any Net Cash Proceeds of any issuance or sale of Stock (other than Disqualified Stock) of the Borrower (provided that any Investments made with such Net Cash Proceeds under this Section 11.5(b)(viii) are made within one hundred and eighty (180) calendar days of the issuance of such Stock) (such amount, an “Equity Funded Investment”); provided that the foregoing limits shall not apply during the period in which, and Investments may be made pursuant to this Section 11.5(b)(viii) without duplication of limit at any amount that increased such time during which, after giving pro forma effect to the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect making of any such Investment Investment, (which amount referred 1) no Event of Default shall have occurred and be continuing and (2) Liquidity is not less than 10% of the then-effective First Lien First Out Revolving Loan Limit (on a pro forma basis after giving effect to such Investment) or, after the Discharge of First Lien First Out Obligations, cash on the balance sheet of the Borrower of at least $220,000,000; provided, further, that (x) intercompany current liabilities incurred in the ordinary course of business and consistent with past practices, in connection with the cash management operations of the Borrower and the Subsidiaries shall not be included in calculating any limitations in this subclause paragraph at any time and (zy) for the avoidance of doubt, any prepayment, repurchase, redemption or defeasance of the Senior Notes, any Permitted Junior Indebtedness or any Permitted Additional Debt shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such timealso be subject to compliance with Section 11.7;
(jix) Investments constituting non-cash proceeds of Dispositions of assets to the extent such Disposition is permitted by Section 10.411.4;
(kx) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(mxi) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends Restricted Payments to the extent permitted to be made to such parent in accordance with Section 10.611.6;
(nxii) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(oxiii) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(pxiv) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of business;
(qxv) Guarantee Obligations guarantee obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(rxvi) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Effective Date otherwise in accordance with this Section 10.5 11.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.
Appears in 1 contract
Limitation on Investments. The Borrower Borrowers will not, and will not permit any of the Restricted Subsidiaries to Subsidiary to, make any Investment exceptin any Person except for:
(a) extensions of trade credit and asset purchases Investments held in the ordinary course form of businesscash and Cash Equivalents or Investments in Guarantors;
(b) Investments that were existing as of the Closing Date and, with respect to any Investment (other than Investments in other Consolidated Companies, Unrestricted Subsidiaries and Permitted Investments when such Investments were madeJoint Ventures) with value of $5,000,000 or more as of the Closing Date, set forth in Schedule 6.10;
(c) loans and advances receivables owing to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) Company or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are to suppliers, in each case if created, acquired or made in cash, the amount ordinary course of such loans business and advances used to acquire such Stock payable or Stock Equivalents shall be contributed to the Borrower dischargeable in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000accordance with customary trade terms;
(d) Investments existing on, or made pursuant guarantees of the debt of suppliers and vendors incurred in the ordinary course of business not to legally binding written commitments exceed $30 million in existence on, the 2014 July Repricing Effective Date and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateaggregate;
(e) loans and advances (other than advances of sales commissions) to employees (other than officers or directors) and investments in residential property in connection with the relocation of any employees in an aggregate amount not to exceed U.S.$8,000,000 at any time outstanding;
(f) Investments received in connection with the bankruptcy or reorganization of suppliers or and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(og) Investments Permitted Acquisitions, including the SSCC Acquisition; provided that to the extent the aggregate Consolidated Net Tangible Assets of entities acquired in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations a Permitted Acquisition that do not constitute IndebtednessCredit Parties immediately after the consummation of the Permitted Acquisition are in excess of twenty percent (20%) of the aggregate Consolidated Net Tangible Assets of all such entities acquired in such Permitted Acquisition, then an amount equal to (i) such excess percentage over 20%, multiplied by (ii) the aggregate consideration paid by the Company and its Restricted Subsidiaries for all such entities in each case the Permitted Acquisition, shall not constitute an Investment permitted under this clause (g);
(h) [Reserved];
(i) Investments in Hedging Agreements, Cash Management Agreements, and agreements entered into in the ordinary course respect of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 fiber trading and fiber brokerage operations, to the extent such Hedging Agreements, Cash Management Agreements and other such agreements are permitted hereby; and
(j) additional Investments not otherwise permitted by the foregoing subsections (a) through (i); provided that the aggregate outstanding amount at any time of all such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on after the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, thatClosing Date pursuant to this subsection shall not, at the time each such Investment is madeany time, would not exceed the sum greater of (x) $750,000,000 plus seven and a half percent (7.5%) of Consolidated Net Tangible Assets determined as of the most recent fiscal period end for which financial statements are required to be delivered hereunder and (y) if the Borrower U.S.$575,000,000. Investments shall be in compliance with the Senior Secured Leverage Testvalued at cost, both before and after giving effect, on a Pro Forma Basis, to the making less any return of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Datecapital thereon.
Appears in 1 contract
Samples: Credit Agreement (Rock-Tenn CO)
Limitation on Investments. The Borrower will not, and the Borrower will not permit any of the its Restricted Subsidiaries to to, make any Investment except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were made;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash cash) and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date Closing Date, as set forth on Schedule 10.5 and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateset forth on Schedule 10.5;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by Holdings or of the Borrower or any Restricted Subsidiary in any Credit Partyor, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course case of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof)a Restricted Non-Domestic Subsidiary;
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.
Appears in 1 contract
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries to make any Investment except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madeInvestments;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries or to Physicians with whom the Borrower or any of its Subsidiaries have contractual relationships (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, ) to the extent such loans and advances are made in cash, that the amount of such loans and advances used to acquire such Stock are directly or Stock Equivalents shall be indirectly contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the , in an aggregate principal amount outstanding pursuant to this subclause (iii) shall not to exceed $10,000,00020,000,000;
(d) Investments existing on, or made contemplated as of, the Closing Date and either (x) constituting Indebtedness that is permitted pursuant to legally binding written commitments in existence on, Section 10.1(g)(ii) or (y) listed on Schedule 10.5 to the 2014 July Repricing Effective Date Original Credit Agreement and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of any Investment made all Investments pursuant to this clause (d) is not increased at any time above the amount of such Investment Investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Closing Date;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) [reserved], (c) between or among 1993 Indenture Restricted Subsidiaries, (d) between or among Restricted Subsidiaries that are not neither Credit PartiesParties nor 1993 Indenture Restricted Subsidiaries, and (ce) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries and (provided that any such intercompany Investment in connection with cash management arrangements f) by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such any Restricted Subsidiary complies with Section 9.12 in any Restricted Subsidiary, provided that such Investment is used, directly or as a result of substantially concurrent transfers, to the extent applicable), repay intercompany Indebtedness owed to any Credit Party and (ii) (a) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent (b) by 1993 Indenture Restricted Subsidiaries in any Restricted Subsidiary that the aggregate amount of all Investments made on is not a 1993 Indenture Restricted Subsidiary or after the 2014 July Repricing Effective Date pursuant to this subclause (ii)c) by any Restricted Subsidiary that is neither a Credit Party nor a 1993 Indenture Restricted Subsidiary in any 1993 Indenture Restricted Subsidiary, when in each case valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, from and after the Second Restatement Effective Date, in an aggregate amount pursuant to this subclause (ii) that, at the time each such Investment is made, would not exceed the sum of (x) the excess of (A) the greater of (I) $1,000,000,000, when taken together with 3,000,000,000 and (II) 12% of Total Assets over (B) the amount of Investments outstanding at such time in reliance on Section 10.5(i)(x10.5(i)(ii)(x) at such time plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Partiestime;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, Subsidiaries and (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) from and after the Second Restatement Effective Date that, at the time each such Investment is made, would not exceed the sum of (x) the excess of (A) the greater of (I) $1,000,000,000 when taken together with 3,000,000,000 and (II) 12% of Total Assets over (B) the amount of Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) at such time, plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time);
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any employee stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances advance to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments by 1993 Indenture Restricted Subsidiaries of accounts receivable and related assets in Hedge Agreements permitted by Section 10.1ABL Entities;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments made in reliance on Section 10.5(g)(ii) or Section 10.5(i) (in each case, of the ordinary course of business in connection with SettlementsFirst Restated Credit Agreement) prior to the Second Restatement Date or committed to be made prior to the Second Restatement Effective Date;
(v) other Investments, that, Investments by the Borrower and the Restricted Subsidiaries in any joint venture (regardless of the form of legal entity) or Restricted Subsidiary in an aggregate amount at the any time each such Investment is made, would outstanding not to exceed the sum of (xA) $750,000,000 600,000,000 plus (yB) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable JV Distribution Amount plus (zC) without duplication of any amount that increased the Applicable Equity Amount JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (C) shall not exceed the amount of such Investment valued at the fair market value of such timeInvestment at the time such Investment was made); provided, that the aggregate amount of Investments made in reliance on subclause (B) or (C) above by the Credit Parties shall not exceed the aggregate of the amounts referred to in such subclauses that were directly or indirectly received by Credit Parties;
(w) Investments in connection with any transaction permitted redemption by Section 10.3; andHealthtrust, or transfer to Healthtrust or the Borrower, of shares of Stock of Healthtrust held by Columbia—SDH and Epic Properties;
(x) Investments consisting intercompany transfers of licensing creditor positions (i) in respect of intellectual property with Indebtedness outstanding pursuant to Sections 10.1(a), 10.1(g)(ii) or 10.1(i), and (ii) in respect of any other Persons intercompany Indebtedness; provided that the transfer of credit positions described in the ordinary course this clause (ii) is used, directly or as a result of businesssubstantially concurrent transfers, to repay intercompany Indebtedness owed to any Credit Party;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary Indebtedness outstanding pursuant to another Foreign SubsidiarySection 10.1(a)(z) and 10.1(i)(z); and
(z) other Investments by so long as the Consolidated Total Debt to Consolidated EBITDA Ratio for the most recently ended Test Period for which Section 9.1 Financials have been delivered is less than or equal to 4.25:1.00, determined on a Pro Forma Basis after giving effect to such Investment; provided that any Credit Party Investment in any a Person that is a Restricted Subsidiary that is not a Credit Party shall be in an aggregate amount not to exceed the fair market value form of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Datecash;.
Appears in 1 contract
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries to to, make any Investment except:
Investment, except (each of the following exceptions, the “Permitted Investments”): (a) extensions of trade credit and credit, asset purchases (including purchases of inventory, Intellectual Property, supplies, materials or equipment or other similar assets), licenses, sublicenses, leases or subleases of other assets and the licensing or sublicensing or contribution of Intellectual Property or other rights and the contribution of other assets, Intellectual Property or other rights pursuant to joint marketing arrangements with other Persons, in each case in the ordinary course of business;
business or consistent with past practice or industry norm; (b) Investments that were Permitted Investments when in assets constituting, or at the time of making such Investments were made;
were, cash or Cash Equivalents; (c) loans and advances to (or guarantees of Indebtedness of) officers, directors managers, directors, employees, consultants and employees independent contractors of the Borrower (or any direct Parent Entity or indirect parent thereofEquityholding Vehicle) or any of its Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s to fund or finance the purchase of Capital Stock or Stock Equivalents of the Borrower (or any direct Parent Entity thereof or indirect parent thereofany Equityholding Vehicle); provided that, to (ii) for business related travel expenses, entertainment expenses, moving expenses, relocation expenses and similar expenses, Tax advances, payroll advances and similar expenses, in each case incurred in the extent such loans and advances are made in cash, the amount ordinary course of such loans and advances used to acquire such Stock business or Stock Equivalents shall be contributed to the Borrower in cash consistent with past practice or industry norm and (iii) for additional purposes not described contemplated by subclause (i) or (ii) above; provided that, after giving pro forma effect to the making of any such loan or advance, the aggregate principal amount of all loans and advances outstanding under this Section 10.5(c)(iii) shall not exceed the greater of (x) $11,000,000 and (y) 10.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to the date such Investment is made (measured as of such date) based upon the Internal Financial Statements most recently available on or prior to such date; (d) Investments (i) existing on the Closing Date or (ii) contemplated on the Closing Date or made pursuant to binding agreements in effect on the Closing Date to the extent listed on Schedule 10.5 and (iii) in the foregoing subclauses case of each of clauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, any modification, replacement, renewal, extension or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date and any extensions, renewals or reinvestments reinvestment thereof, so long as the aggregate amount of any Investment made all Investments pursuant to this clause (dSection 10.5(d) is not increased at any time above the amount of such Investment Investments or binding agreements existing onor contemplated on the Closing Date, or made except pursuant to legally the terms of such Investment or binding written commitments in existence on, agreements existing or contemplated as of the 2014 July Repricing Effective Date;
Closing Date (including as a result of the accrual or accretion of original issue discount or the issuance of payment-in-kind obligations) or as otherwise permitted by this Section 10.5 or Section 10.6; (e) Investments in Hedging Agreements permitted by Section 10.1 and Cash Management Agreements permitted by Section 10.1; (f) Investments received (i) in connection with the bankruptcy with, or as a result of, any bankruptcy, workout, reorganization or recapitalization of suppliers suppliers, trade creditors or customers and or in settlement or compromise of delinquent obligations ofand disputes with, and or judgments against, or other disputes with, customers arising in the ordinary course of business customers, trade creditors or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;-197- #95203802v2296160609v3 #96160609v5
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) Investments by or among the Borrower and/or the Restricted Subsidiaries in the Borrower or any other Restricted Subsidiary (aincluding guarantees of obligations of the Borrower or any Restricted Subsidiary and any prepayments, repurchases, redemptions, defeasances, acquisitions and other similar payments of any Indebtedness of any such Person not prohibited by Section 10.7), (ii) Investments by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Unrestricted Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when as valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) Fair Market Value of such Investment at the time each such Investment is made, in an ; provided that the amount of such Investment (as so valued) shall not cause the aggregate amount of all such Investments made pursuant to this Section 10.5(i)(ii) to exceed the sum of (A) the greater of (x) $33,000,000 and (y) 30.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period most recently ended on or prior to the date such Investment is made (measured as of such date) based upon the Internal Financial Statements most recently available on or prior to such date plus (B) without duplication of clause (iA), an amount equal to the amount by which aggregate Net Cash Proceeds from any Disposition of, or any Returns in respect of, Investments made in reliance on clause (A) that, exceeds the amount set forth in clause (A) to the extent such amount does not also increase the Available Amount and (iii) Investments by the Borrower or any Restricted Subsidiary in any Joint Venture as valued at the Fair Market Value of such Investment at the time each such Investment is made, would ; provided that the amount of such Investment (as so valued) shall not cause the aggregate amount of all such Investments made pursuant to this Section 10.5(i)(iii) to exceed the sum of (A) the greater of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus 33,000,000 and (y) if 30.0% of Consolidated EBITDA of the Borrower shall be in compliance with and its Restricted Subsidiaries for the Senior Secured Leverage Test, both before and after giving effect, Test Period most recently ended on a Pro Forma Basis or prior to the making date such Investment is made (measured as of such Investment, date) based upon the Applicable Amount at Internal Financial Statements most recently available on or prior to such time date plus (zB) without duplication of any amount that increased the JV Distribution Amountclause (A), an amount equal to the amount by which aggregate Net Cash Proceeds from any repaymentsDisposition of, interest, returns, profits, distributions, income and similar amounts actually received in cash or any Returns in respect of any such Investment of, Investments made in reliance on clause (which amount referred to in this subclause (zA) shall not exceed exceeds the amount set forth in clause (A) to the extent such amount does not also increase the Available Amount; provided, that, if any Investment pursuant to Section 10.5(i)(ii) or Section 10.5(i)(iii) is made in any Person that is not a Restricted Subsidiary at the date of the making of such Investment valued at and such Person becomes a Restricted Subsidiary or such Person, in one transaction or a series of related transactions, is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the fair market value of Borrower or any Restricted Subsidiary, in each case, after such date, such Investment at the time shall thereafter be deemed to have been made pursuant to Section 10.5(i)(i) above and shall cease to have been made pursuant to Section 10.5(i)(ii) or Section 10.5(i)(iii) for so long as such Investment was made) plus (aa) the Applicable Equity Amount at such time;
Person continues to be a Restricted Subsidiary; (j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans advances, loans, rebates and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit (including in the nature of accounts receivable or receivable, notes receivable arising from the grant receivable, security deposits and prepayments (including prepayments of expenses) and trade credit credit) granted to suppliers, customers and vendors and performance guarantees, in each case, in the ordinary course of businessbusiness or consistent with past practice or industry norm, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other deposits, prepayments and other credits to suppliers in the ordinary course of business;
(o) Investments suppliers, customers and vendors in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
practice or industry norm; (pk) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower may make a loan to any Parent Entity thereof or any Equityholding Vehicle that could otherwise be made as a Restricted Subsidiary of leases Payment (other than Capital Leasesa Restricted Investment) to any Parent Entity thereof or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.-198- #95203802v2296160609v3 #96160609v5
Appears in 1 contract
Samples: Incremental Agreement to Credit Agreement (Snap One Holdings Corp.)
Limitation on Investments. The Borrower will notMake any advance, and will not permit loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes, debentures or other debt securities of, or any assets constituting an ongoing business from, or make any other investment in, any other Person (all of the Restricted Subsidiaries to make any Investment foregoing, “Investments”), except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madein Cash Equivalents;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) Investments arising in connection with such Person’s purchase the incurrence of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereofIndebtedness permitted by Section 7.2(b); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant loans and advances to legally binding written commitments in existence onofficers of the Parent REIT, the 2014 July Repricing Effective Date Borrower or any Subsidiaries of the Borrower in the ordinary course of business (including, without limitation, for travel, entertainment and relocation expenses) in an aggregate amount for the Parent REIT, the Borrower and Subsidiaries of the Borrower not to exceed $250,000 at any extensions, renewals or reinvestments thereofone time outstanding;
(e) any Investments, so long as the amount (i) immediately prior to and immediately after giving effect to such Investment, no Default or Event of any Investment made pursuant Default shall have occurred and be continuing, and (ii) after giving pro forma effect to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence onInvestment, the 2014 July Repricing Effective DateBorrower shall be in compliance with the provisions of Sections 6.9 and 7.1 hereof;
(ef) to the extent constituting Investments, non-cash consideration received in connection with a Disposition permitted under this Agreement;
(g) Investments in Subsidiaries of the Parent REIT existing as of First Amendment Effective Date, Investments in any Subsidiaries of the Parent REIT created after the First Amendment Effective Date and Investments in any Person that, after giving effect to such Investment, shall become a Subsidiary of the Parent REIT;
(h) deposits required by government agencies or public utilities, and other deposits or pledges which constitute Permitted Liens;
(i) Investments received in connection with the bankruptcy or reorganization of suppliers of, or customers and in settlement of delinquent obligations of, accounts and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties)suppliers, in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(oj) Investments consisting of debt securities, equity securities and other non-cash consideration received as consideration for a disposition permitted by this Agreement;
(k) Investments in Unimproved Land including construction draws to tenants in connection with improvements thereon in an amount not to exceed 5% of Total Asset Value as of the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practicesdate any such Investment is made;
(pl) advances of payroll payments lease incentives (1) extended to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments tenants in the ordinary course of business in connection with Settlementsthe form of cash contributions to be used for such tenants’ capital expenditures and building improvements, which in each case generate additional Net Operating Income for the applicable Real Property Asset within twelve months after the date of extension of such lease incentive (provided that this clause (1) shall, for the avoidance of doubt, exclude lease incentives in the form of other preferential lease terms including free rent) and (2) in the form of other preferential lease terms (including free rent) in an aggregate amount under this clause (2) not to exceed $20,000,000 at any time outstanding;
(vm) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, transactions permitted under Section 7.4 to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3extent constituting Investments; and
(xn) other Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party otherwise permitted hereunder in an aggregate amount not to exceed $40,000,000 at any time outstanding. In determining the fair market aggregate amount of Investments outstanding at any particular time: (A) there shall be included as an investment all interest accrued with respect to Indebtedness constituting an Investment unless and until such interest is paid; (B) there shall be deducted in respect of each Investment any amount received as a return of capital; (C) there shall not be deducted in respect of any Investment any amounts received as earnings on such Investment, whether as dividends, interest or otherwise, except that accrued interest included as provided in the foregoing clause (A) shall be deducted when paid; and (D) the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Datethereof.
Appears in 1 contract
Samples: Credit Agreement (Essential Properties Realty Trust, Inc.)
Limitation on Investments. The Holdings and the Borrower will not, and will not permit any of the Restricted Subsidiaries to to, make any Investment advance, loan, extensions of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets of, or make any other investment in, any Person, except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madeInvestments;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) Holdings or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s to finance the purchase of Stock or Stock Equivalents capital stock of the Borrower Holdings (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, that the amount of such loans and advances used to acquire such Stock or Stock Equivalents capital stock shall be contributed by Holdings to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (ias common equity) and (ii); provided that the ) for additional purposes not contemplated by subclause (i) above in an aggregate principal amount at any time outstanding pursuant with respect to this subclause clause (iiiii) shall not exceed exceeding $10,000,000;
(d) Investments investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Date date hereof and listed on Schedule 10.5 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of any Investment made all investments pursuant to this clause (d) is not increased at any time above the amount of such Investment investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Datedate hereof;
(e) Investments investments in Hedge Agreements permitted by Section 10.1(h);
(f) investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investmentbusiness;
(fg) Investments investments to the extent that payment for such Investments investments is made solely with Stock or Stock Equivalents capital stock of Holdings;
(gh) Investments investments constituting non-cash proceeds of sales, transfers and other dispositions of assets to the extent permitted by Section 10.4;
(i) investments in any Guarantor (aother than Holdings), the Borrower, the Canadian Borrower or any Foreign Subsidiary Guarantor;
(j) investments constituting Permitted Acquisitions, provided that the aggregate amount of any such investment, as valued at the fair market value of such investment at the time each such investment is made, made by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit PartyForeign Subsidiary, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date such Restricted Foreign Subsidiary does not become a Foreign Subsidiary Guarantor pursuant to this subclause (ii)Section 9.11 and does not enter into the guarantee and collateral arrangements contemplated thereby, when valued at shall not exceed the fair market value (determined by the Borrower acting in good faith) of each such Investment Available Amount at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time investment plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment investment valued at the fair market value of such Investment investment at the time such Investment investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4);
(k) Investments investments in the equity interests of one or more newly formed persons that are received in consideration of the contribution by the Borrower or its applicable Restricted Subsidiaries of assets (including capital stock) to such person or persons, provided that (i) the fair market value of such assets, determined on arms-length basis, so contributed pursuant to this paragraph (k) shall not in the aggregate exceed $50,000,000, (ii) with respect to investments in Foreign Joint Ventures, the sum of all investments in Foreign Joint Ventures made pursuant to this Section 10.5 (k) prior to the date thereof and all investment in Foreign Joint Ventures made pursuant to Section 10.5(m) below prior to the date thereof, when taken together, as valued at the fair market value of such investment at the time each such investment is made, does not exceed $50,000,000 plus an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such investment (which amount shall not exceed the amount of such investment valued at the fair market value of such investment at the time such investment was made) in the aggregate and (iii) in respect of each such contribution, an Authorized Officer of the Borrower shall certify, in a form to be agreed upon by the Borrower and the Administrative Agent (x) after giving effect to such contribution, no Default or Event of Default shall have occurred and be continuing, (y) the fair market value of the assets so contributed and (z) that the requirements of paragraph (i) of this proviso remain satisfied;
(l) investments made to repurchase or retire Stock or Stock Equivalents common stock of the Borrower or any direct or indirect parent thereof Holdings owned by any employee or any stock ownership plan or key employee stock ownership plan of Holdings or the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6Borrower;
(m) loans additional investments (including investments in Minority Investments and advances to any direct or indirect parent Unrestricted Subsidiaries), as valued at the fair market value of such investment at the Borrower time each such investment is made, in lieu of, and an aggregate amount at the time of such investment not in excess of the Available Amount at such time plus an amount ofequal to any repayments, dividends interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such investment (which amount shall not exceed the amount of such investment valued at the fair market value of such investment at the time such investment was made), provided, that with respect to investments in Foreign Joint Ventures, the sum of all investments in Foreign Joint Ventures made pursuant to Section 10.5 (k) above prior to the extent permitted date thereof and all investment in Foreign Joint Ventures made pursuant to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 10.5(m) prior to the extent that such Investments were not made in contemplation of or in connection with such acquisitiondate thereof, merger or consolidation and were in existence on when taken together, as valued at the date fair market value of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, investment at the time each such Investment investment is made, would does not exceed $50,000,000 plus an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such investment (which amount shall not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making amount of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount investment valued at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since such investment at the Initial Effectiveness Datetime such investment was made) in the aggregate; and
(n) investments permitted under Section 10.6.
Appears in 1 contract
Samples: Credit Agreement (Sealy Corp)
Limitation on Investments. The Borrower will notLoans and Advances. Make any advance, and will not permit 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 the Restricted Subsidiaries to or any assets constituting a business unit of, or make any Investment other investment in, any Person, except:
(ab) extensions investments in Cash Equivalents;
(c) Guarantee Obligations permitted by Section 7.2;
(d) loans and advances to employees of trade credit and asset purchases the Borrower or its Subsidiaries in the ordinary course of businessbusiness (including, without limitation, for travel, entertainment and relocation expenses) in an aggregate amount for the Borrower and its Subsidiaries not to exceed $5,000,000 at any one time outstanding;
(be) Investments that were Permitted Investments when such Investments were madethe Acquisitions;
(cf) loans and advances to officers, directors and employees of investments by the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries in the Borrower or any Wholly Owned Subsidiary Guarantor;
(g) loans, advances or investments in existence on the Closing Date and listed on Schedule 7.8(g), and extensions, renewals, modifications or restatements or replacements thereof, provided that no such extension, renewal, modification or restatement shall (i) for reasonable and customary business-related travelincrease the amount of the original loan, entertainmentadvance or investment, relocation and analogous ordinary business purposes (including employee payroll advances), or (ii) adversely affect the interests of the Lenders with respect to such original loan, advance or investment or the interests of the Lenders under this Agreement or any other Loan Document in any respect;
(h) investments made by the Borrower or any of its Subsidiaries with the proceeds of any Reinvestment Deferred Amount or any Unapplied Excess Cash Flow;
(i) investments made by the Borrower or any of its Subsidiaries pursuant to an Asset Swap or with the proceeds of any Contributed Equity, so long as, after giving pro forma effect thereto (as certified to the Administrative Agent by a Responsible Officer prior to consummation of such investment), no Default or Event of Default shall have occurred and be continuing (including, without limitation, pursuant to Section 7.1); and
(j) Investments constituting Capital Expenditures permitted by Section 7.7;
(k) promissory notes and other similar non-cash consideration received by the Borrower and its Subsidiaries in connection with such Person’s purchase the Dispositions permitted by Section 7.5;
(l) Investments consisting of Stock or Stock Equivalents Interest Rate Protection Agreements and commodity and currency hedging arrangements entered into in the ordinary course of business of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans of its Subsidiaries and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) not for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000of speculation;
(dm) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date (including debt obligations and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (dCapital Stock) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;business; and 71 66
(fn) Investments in addition to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) investments otherwise expressly permitted by this Section 7.8, investments by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted of its Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant (valued at cost) not to this clause (i) thatexceed $30,000,000 at any one time outstanding, at the time each such Investment is madeso long as, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis pro forma effect thereto (as certified to the making Administrative Agent by a Responsible Officer prior to consummation of such Investmentinvestment, in the Applicable Amount at such time plus (z) without duplication case of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not single investment in excess of the amount of$15,000,000), dividends no Default or Event of Default shall have occurred and be continuing (including, without limitation, pursuant to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date7.1).
Appears in 1 contract
Samples: Credit Agreement (Campfire Inc)
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries to Subsidiary to, make any Investment except:
(a) extensions of trade credit and asset purchases of assets and services (including purchases of inventory, supplies and materials) in the ordinary course of business;
(b) Investments in assets that were constituted Permitted Investments when at the time such Investments were made;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(fd) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents (other than Disqualified Stock not otherwise permitted by Section 10.1) of Holdingsthe Borrower (or any direct or indirect parent thereof);
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(je) Investments constituting non-cash proceeds of Dispositions of assets to the extent such Disposition is permitted by Section 10.4;
(kf) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(mg) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends Restricted Payments to the extent permitted to be made to such parent in accordance with Section 10.6;
(nh) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(oi) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(pj) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of business;
(qk) Guarantee Obligations guarantee obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(rl) Industry Investments, Investments held by in direct ownership interests in additional Oil and Gas Properties and gas gathering systems related thereto and Investments related to farm-out, farm-in, joint operating, joint venture, joint development or other area of mutual interest agreements, other similar industry investments, gathering systems, pipelines or other similar oil and gas exploration and production business arrangements, in each case excluding ownership in any Person other than a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidationGroup Member;
(sm) Investments in Hedge Agreements permitted by Section 10.110.1 and Section 10.10;
(tn) Investments arising out consisting of or in connection with any Permitted Receivables FinancingIndebtedness, fundamental changes, Dispositions and Restricted Payments permitted under Sections 10.1, 10.3, 10.4 and 10.6 (other than Section 10.6(c));
(uo) Investments by the Borrower or any Restricted Subsidiary in the ordinary course of business in connection with Settlementsany Restricted Subsidiary;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(xp) Investments consisting of licensing of intellectual property pursuant to joint marketing arrangements with other Persons in the ordinary course of business;.
(yq) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that Person other than a Group Member if (1) no Default or Event of Default has occurred and is continuing or would result therefrom and (2) the aggregate value at the date made (in each case valued at Fair Market Value (determined by the Borrower acting in good faith) as of such date) of each then-existing Investment in all Persons other than Group Members does not a Credit Party in an aggregate amount not to then exceed the fair market value 15% of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness DateAdjusted Consolidated Net Tangible Assets.
Appears in 1 contract
Limitation on Investments. The Borrower will notMake any advance (other than demand deposits), and will not loan, extension of credit or capital contribution to, or incur any Guarantee Obligations in respect of obligations of, or purchase for value any Capital Stock, bonds, notes, debentures or other securities of, any Person (collectively, “Investments”), or permit any Subsidiary to do any of the Restricted Subsidiaries to make any Investment foregoing, except:
(a) Investments constituting advances and extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madein cash and Cash Equivalents;
(c) loans Investments existing on the Effective Date and described on Schedule 8.7 and any renewals, refinancings or restructurings thereof, provided that the original amount of any such Investment is not increased (except to the extent any such increase would be permitted under another provision of this subsection 8.7);
(d) Permitted Business Acquisitions;
(e) Investments constituting loans, advances and other extensions of credit to officersdirectors, directors officers and employees of the Borrower (or any direct or indirect parent thereof) Company or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous other business expenses in the ordinary course of business purposes in an aggregate amount for the Company and its Subsidiaries not to exceed $1,000,000 at any one time outstanding;
(including employee payroll advances)f) Investments by (i) the Company or any Subsidiary in the Company or any other Loan Party, (ii) any Subsidiary that is not a Loan Party in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash other Subsidiary that is not a Loan Party and (iii) for purposes any Loan Party in any Subsidiary that is not described in the foregoing subclauses (i) and (ii); a Loan Party, provided that the aggregate principal amount outstanding Investments made pursuant to this subclause clause (iii) shall be in cash and, at the time of incurrence and after giving effect to any such Investment, the aggregate amount of all outstanding Investments made pursuant to this clause (iii) shall not exceed the greater of (A) $10,000,000;
150,000,000 and (dB) Investments existing on5% of the Consolidated Total Assets as of such time provided, or made pursuant to legally binding written commitments however, that the limitations set forth in existence on, clauses (A) and (B) shall not restrict the 2014 July Repricing Effective Date and any extensions, renewals or reinvestments thereof, so long as the amount incurrence of any Investment made pursuant to this clause (diii) is not increased if, at any the time above the amount of such Investment existing onincurrence, or made pursuant to legally binding written commitments in existence onand after giving effect thereto, the 2014 July Repricing Effective Date;
(e) Investments received in connection with the bankruptcy Springing Liquidity Amount would be equal to or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdingsgreater than $450,000,000;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by made as a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless receipt of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired consideration (including by way of merger or consolidationIndebtedness) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or received in connection with any Permitted Receivables FinancingDisposition permitted under subsection 8.5;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.
Appears in 1 contract
Samples: Multi Currency Credit Agreement (Harman International Industries Inc /De/)
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries to make Make any Investment exceptexcept for:
(a) extensions of trade credit and credit, asset purchases in (including purchases of inventory, supplies and materials) and the ordinary course licensing or contribution of businessintellectual property pursuant to joint marketing arrangements with other Persons;
(b) Investments that were Permitted Investments when such Investments were madeCash Equivalents;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s to finance the purchase of Capital Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, that the amount of such loans and advances used to acquire such Capital Stock or Stock Equivalents shall be contributed to the Borrower in cash as common equity), (ii) for reasonable and customary business related travel expenses, moving expenses and similar expenses, and (iii) for additional purposes not described in the foregoing subclauses contemplated by subclause (i) and or (ii); provided that the ) above in an aggregate principal amount at any time outstanding pursuant with respect to this subclause clause (iii) shall not exceed exceeding $10,000,0005,000,000 in any fiscal year (with unused amounts in any such period being carried-forward to any succeeding fiscal year);
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Closing Date and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of any Investment made all Investments pursuant to this clause (d) is not increased at any time above the amount of such Investment Investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Closing Date;
(e) Investments in Hedging Obligations to the extent not prohibited by Section 6.01;
(f) Investments received in connection with the bankruptcy or reorganization of trade creditors, trade counterparties, suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investmentcustomers;
(fg) Investments to the extent that payment for such Investments is made with Capital Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit PartiesBorrower;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiariesany Restricted Subsidiary, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case as valued at the fair market value (determined by the Borrower acting in good faith) Fair Market Value of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time such Investment is made, would not exceed the Retained Prepayment Amount at such time;
(i) Investments (including in the form of loans) in the Borrower or any Subsidiary Guarantor;
(j) Investments constituting Permitted Acquisitions;
(k) Investments made to repurchase or retire common stock of the Borrower owned by any employee stock ownership plan or key employee, directors and officers, or other stock ownership plans of the Borrower;
(l) (i) additional Investments (including Investments in Excluded Subsidiaries, Minority Investments and Unrestricted Subsidiaries) and (ii) Investments in joint ventures or similar entities that do not constitute Restricted Subsidiaries, in each case as valued at the Fair Market Value of such Investment at the time each such Investment is made, (A) in an aggregate amount that, at the time such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) 500,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Available Amount at such time plus (z) without duplication of any amount that increased to the JV Distribution extent such amounts do not increase the Available Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value Fair Market Value of such Investment at the time such Investment was made), and/or (B) plus in the case of Investments described in clause (aaii) above only, in an aggregate amount that, at the Applicable Equity Amount at time such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets Investment is made, would be permitted to be expended as a Capital Expenditure under Section 6.12, to the extent permitted that (x) the applicable joint venture owns an interest in assets the addition of which would have been a Capital Expenditure if acquired or constructed, and owned, directly by Section 10.4;
the Borrower or a Restricted Subsidiary and (ky) Investments made to repurchase or retire Stock or Stock Equivalents the ability of the Borrower and/or one or more Restricted Subsidiaries to receive cash flows attributable to its interest therein is not restricted by contract, Applicable Law or otherwise; provided, however, that in determining whether any direct Investments made in cash or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends Cash Equivalents would be permitted under this Section 10.66.05(l), the aggregate amount of such Investments made in cash or Cash Equivalents pursuant to clause (ii)(A)(x) above shall not exceed $300,000,000;
(m) loans and advances to Investments in any Excluded Subsidiary by another Excluded Subsidiary, other than any such Investments made with the proceeds of Non-Recourse Indebtedness; provided, however, that (i) Investments in an Excluded Subsidiary with the proceeds of Non-Recourse Indebtedness by another Excluded Subsidiary that is a direct or indirect parent of such Excluded Subsidiary shall be permitted and (ii) Investments in an Excluded Subsidiary with the Borrower in lieu ofproceeds of Non-Recourse Indebtedness by another Excluded Subsidiary that is formed solely for the purposes of incurring such Non-Recourse Indebtedness, that has no other assets other than de minimis assets and not in excess of that has the amount of, dividends to the extent permitted to same direct parent as such Excluded Subsidiary shall be made to such parent in accordance with Section 10.6permitted;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of businessAcquisition Transactions;
(o) Investments in the ordinary course contribution of business consisting any one or more of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practicesthe Specified Facilities to a Restricted Subsidiary that is not a Loan Party;
(p) advances Investments that are received in consideration of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of contribution by the Borrower or any a Restricted Subsidiary of leases assets (other than Capital Leases) cash, Cash Equivalents or Core Collateral), valued at the Fair Market Value of other obligations that do not constitute Indebtednesssuch Investment at the time such Investment is made, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, an aggregate amount that, at the time each such Investment is made, would not exceed the Fair Market Value of the sum of (xi) $750,000,000 plus (y) if all Capital Stock of the Borrower shall be paid as consideration in compliance connection with a Permitted Acquisition (valued at the Senior Secured Leverage Test, both before time of consummation of such Permitted Acquisition) consummated after the Closing Date and after giving effect, on a Pro Forma Basis, or prior to the making date of such InvestmentInvestment so long as all Equity Interests and other assets that were acquired by the Borrower or a Restricted Subsidiary through such Permitted Acquisition have been pledged to the Collateral Agent to the extent required under Section 5.09 (provided that such acquired assets shall not be become Excluded Assets pursuant to clauses (viii) or (xiii) of the definition thereof) and (ii) all assets that (A) were contributed, without consideration, by an Excluded Subsidiary to the Applicable Amount plus Borrower or a Subsidiary Guarantor after the Closing Date (zvalued at the time of such contribution) or (B) were owned at the Applicable Equity Amount time by an Excluded Subsidiary that became a Subsidiary Guarantor after the Closing Date and that have been pledged to the Collateral Agent (valued at the time of such timeguarantee); provided that any amounts specified to in clauses (i) and (ii) above shall not be used to increase any amounts set forth in the other clauses of this Section 6.05;
(wq) (i) Investments in connection with any transaction permitted by under Section 10.36.06 and (ii) Guarantees permitted under Section 6.01; and
(xr) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary pursuant to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Datetransactions described Section 6.08(b)(xiv).
Appears in 1 contract
Samples: Credit Agreement (NRG Energy, Inc.)
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries to make Make any Investment in any Person, except:
(a) extensions of trade credit and asset purchases Investments in the ordinary course of businessCash Equivalents;
(b) Investments by any Loan Party or any of their respective Subsidiaries in any other Loan Party, provided, that were Permitted Investments when the Borrower may make loans to Affiliates in an aggregate amount not to exceed $25,000,000, so long as (i) no Default or Event of Default shall have occurred and be continuing or result from the making of such Investments were madeloan, (ii) the Lenders shall not have (A) declared the Obligations to be due and payable or (B) demanded payment of the Loans and Reimbursement Obligations or Cash Collateral for the L/C Obligations, (iii) if, immediately prior to or after giving effect to any such loan, the aggregate outstanding amount of all loans made by the Borrower to its Affiliates is greater than $15,000,000, the Borrower shall have given the Administrative Agent and each Lender reasonable prior notice of such loan, and (iv) the Borrower shall have delivered to the Administrative Agent (A) a certificate of a Responsible Person, in form and substance satisfactory to the Required Lenders, representing and warranting compliance with the terms and conditions of the financial condition covenants, both before and immediately after giving effect to any such loan, and providing detailed calculations of the financial covenants contained therein and (B) if, immediately prior to or after giving effect to any such loan, the aggregate outstanding amount of all loans made by the Borrower to its Affiliates is greater than $15,000,000, a Compliance Certificate showing pro-forma compliance with the terms of the Credit Agreement before and immediately after giving effect to any such loan;
(c) loans Investments consisting of cash and advances Cash Equivalents posted as collateral to officers, directors and employees satisfy margin requirements with counterparties of Commodity Contracts of the Borrower (or any direct or indirect parent thereof) or any of and its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000Subsidiaries;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date (including debt obligations and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (dequity securities) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(oe) with respect to any Guarantor, Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtednessby such Guarantor, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such permitted under the Global Facility Agreement; and
(f) Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date Amended and Restated Effective Date and listed on Schedule 8.8, together with any renewals and extensions thereof so long as the principal amount of such acquisition, merger renewal or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would extension does not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making original principal amount of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.
Appears in 1 contract
Samples: Credit Agreement (Aegean Marine Petroleum Network Inc.)
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to (i) purchase or acquire (including pursuant to any merger, consolidation or amalgamation with a person that is not a Wholly owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of any other Person, (ii) make any Investment loans or advances to or guarantees of the Indebtedness of any other Person, or (iii) purchase or otherwise acquire (in one transaction or a series of related transactions) (x) all or substantially all of the property and assets or business of another Person or (y) assets constituting a business unit, line of business or division of such Person (each, an “Investment”), except:
(a) extensions of trade credit and asset purchases of assets and services (including purchases of inventory, supplies and materials) in the ordinary course of business;
(b) Investments in assets that were constituted Permitted Investments when at the time such Investments were made;
(c) loans and advances to officers, directors directors, employees and employees consultants of the Borrower (or any direct or indirect parent thereof) or any of its Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), ) and (ii) in connection with such Person’s purchase of Stock or Stock Equivalents Equity Interests of the Borrower (or any direct or indirect parent thereof)Parent Entity; provided that, (x) to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents Equity Interests shall be contributed to the Borrower in cash and (iiiy) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause clause (iiic) shall not exceed $10,000,0002,500,000;
(di) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Closing Date as set forth on Schedule 10.5(d), (ii) Investments existing on the Closing Date of the Borrower or any Subsidiary in any other Subsidiary and (iii) any extensions, modifications, replacements, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made as of the Closing Date (other than (a) pursuant to legally binding written commitments an increase as required by the terms of any such Investment as in existence on, on the 2014 July Repricing Effective DateClosing Date or (b) as otherwise permitted under this Section 10.5);
(e) Investments received any Investment acquired by the Borrower or any of its Restricted Subsidiaries: (i) in exchange for any other Investment, accounts receivable or endorsements for collection or deposit held by the Borrower or any such Restricted Subsidiary in each case in connection with the bankruptcy or as a result of a bankruptcy, workout, reorganization of suppliers or customers and in recapitalization of, or settlement of delinquent obligations ofaccounts and disputes with or judgments against, and the issuer of such other disputes withInvestment or accounts receivable (including any trade creditor or customer), customers arising (ii) in satisfaction of judgments against other Persons, (iii) as a result of a foreclosure by the ordinary course Borrower or any of business or upon foreclosure its Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured InvestmentInvestment in default or (iv) as a result of the settlement, compromise or resolution of litigation, arbitration or other disputes with Persons who are not Affiliates;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents Qualified Equity Interests of Holdingsthe Borrower;
(g) Investments (i) by the Borrower in any Guarantor or by any Guarantor in the Borrower, and (aii) by any Guarantor in any other Guarantor; provided, that Investments by any Guarantor in the Borrower or any Restricted Subsidiary Guarantor shall be subordinated in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting right of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 payment to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit PartiesLoans;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued made at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at any such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Testduring which, both before and immediately after giving effect, on a Pro Forma Basis effect to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed on a pro forma basis, the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such timeRestricted Payment Conditions are satisfied;
(j) Investments constituting promissory notes and other non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.410.4 or any other disposition of assets not constituting a Disposition;
(k) Investments made to repurchase or retire Stock or Stock Equivalents consisting of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower Restricted Payments permitted under Section 10.6 (or any direct or indirect parent thereofother than Section 10.6(c));
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(om) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practicespractices or industry practice;
(pn) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case of the Borrower or any Restricted Subsidiary and in the ordinary course of business;
(qo) Guarantee Obligations guarantee obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Capitalized Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(rp) Investments held by a Person acquired (including by way of merger merger, amalgamation or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger merger, amalgamation or consolidation;
(q) Investments in Industry Investments;
(r) to the extent constituting Investments, the Transactions;
(s) Investments in Hedge Agreements permitted by each of Section 10.110.1 and Section 10.10;
(t) Investments arising out consisting of or in connection with any Permitted Receivables Financingfundamental changes and Dispositions permitted under Sections 10.3 (other than Sections 10.3(a), (c) and (g)) and 10.4 (other than Section 10.4(d));
(u) in the case of the Borrower and the Guarantors, Investments consisting of intercompany Indebtedness having a term not exceeding three hundred sixty-four (364) days (inclusive of any roll over or extension of terms) and made in the ordinary course of business business; provided that, in connection with Settlementsthe case of any such Indebtedness owing by the Borrower or a Guarantor to a Subsidiary that is not a Guarantor, such Indebtedness shall be subordinated to the Obligations pursuant to the Intercompany Note; provided, further, that in the case of any such Indebtedness owing by a Subsidiary that is not a Guarantor to the Borrower or a Guarantor, (i) such Indebtedness shall be evidenced by the Intercompany Note pledged in favor of the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Agreement and (ii) the aggregate amount of all such Indebtedness owing by a Subsidiary that is not a Guarantor to the Borrower or a Guarantor pursuant to this Section 10.5(u) shall not exceed the greater of (A) $6,500,000 and (B) two percent (2.0%) of the Borrowing Base at the time such Indebtedness is incurred;
(v) other InvestmentsInvestments resulting from pledges and deposits under clauses (d) and (e) of the definition of “Permitted Liens” and clauses (i), that, at the time each such Investment is made, would not exceed the sum (p) and (u) of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such timeSection 10.2;
(w) Investments advances in connection the form of a prepayment of expenses, so long as such expenses are being paid in accordance with any transaction permitted by Section 10.3; andcustomary trade terms of the Borrower or the relevant Restricted Subsidiary;
(x) Investments consisting of licensing of intellectual property pursuant to joint marketing arrangements with other Persons in the ordinary course of business;
(y) Investments constituting contributions made in the ordinary course of business in connection with obtaining, maintaining or other dispositions renewing client contacts and loans or advances made to distributors in the ordinary course of any Foreign Subsidiary to another Foreign Subsidiary; andbusiness;
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in Excluded Subsidiaries having an aggregate amount fair market value, taken together with all other Investments made pursuant to this Section 10.5(z) that are at the time outstanding, without giving effect to the sale of an Excluded Subsidiary to the extent the proceeds of such sale do not consist of marketable securities (until such proceeds are converted to cash equivalents) not to exceed (i) $10,000,000, so long as immediately after giving effect to the fair market value making of all dividends any such Investment on a pro forma basis, no Default, Event of Default or Loan Limit Deficiency shall have occurred and other distributions received by Credit Parties from Restricted be continuing, or (ii) $3,000,000, so long as immediately after giving effect to the making of any such Investment on a pro forma basis, no Event of Default or Loan Limit Deficiency shall have occurred and be continuing;
(aa) Investments in Unrestricted Subsidiaries consisting of (i) undeveloped acreage to which no Proved Reserves are attributable or (ii) assets that are not Credit Parties since Borrowing Base Properties and other assets not included in the Initial Effectiveness DateBorrowing Base, in each case, in relation to Farm-In Agreements, Farm-Out Agreements, joint operating, joint venture, joint development activities or other similar oil and gas exploration and production business arrangement; provided that immediately after giving effect to the making of any such Investment made in cash on a pro forma basis, the Restricted Payment Conditions are satisfied; and
(bb) any Investment constituting a Disposition or transfer of any asset between or among the Borrower and/or its Restricted Subsidiaries as a substantially concurrent interim Disposition or transfer in connection with an Investment otherwise permitted pursuant to clauses (a) through (aa) above or in connection with a transaction permitted by Section 10.3 or in connection with a Disposition permitted pursuant to Section 10.4. Notwithstanding anything to the contrary herein, in no event shall any Permitted Bond Hedge Transactions or any Permitted Warrant Transactions (or any performance of obligations under any Permitted Bond Hedge Transactions and/or any Permitted Warrant Transactions, as permitted by this Agreement) be considered an “Investment” for purposes of this Agreement. Notwithstanding the foregoing, Borrower may repurchase, exchange or induce the conversion of Permitted Convertible Debt by delivery of shares of Borrower’s common stock and/or a different series of Permitted Convertible Debt and/or by payment of cash (in an amount that does not exceed the proceeds received by Borrower from the substantially concurrent issuance of shares of Borrower’s common stock and/or such different series of Permitted Convertible Debt minus the net cost of any Permitted Bond Hedge Transaction and any related Permitted Warrant Transaction entered into in connection therewith plus the net cash proceeds, if any, received by Borrower pursuant to the related exercise or early unwind or termination of the related Permitted Bond Hedge Transactions and Permitted Warrant Transactions, if any, pursuant to the immediately following proviso); provided that, for the avoidance of doubt, substantially concurrently with, or a commercially reasonable period of time before or after, the related settlement date for the Permitted Convertible Debt that are so repurchased, exchanged or converted, Borrower may exercise or unwind or terminate early (whether in cash, shares or any combination thereof) the portion of the Permitted Bond Hedge Transactions and Permitted Warrant Transactions, if any, corresponding to such Permitted Convertible Debt that are so repurchased, exchanged or converted.
Appears in 1 contract
Samples: Credit Agreement (Infinity Natural Resources, Inc.)
Limitation on Investments. The Holdings and the Borrower will not, and will not permit any of the Restricted Subsidiaries to to, make any Investment advance, loan, extensions of credit or capital contribution to, guarantee any obligations of, purchase any stock, bonds, notes, debentures or other securities of or any assets of, or purchase or otherwise acquire (in one transaction or a series of transactions) all or substantially all of the property and assets or business of another Person or assets constituting a business unit, line of business or division of such Person, or make any other investment in, any Person (each, an “Investment”), except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madeInvestments;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) Holdings or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s to finance the purchase of Stock or Stock Equivalents capital stock of the Borrower Holdings (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, that the amount of such loans and advances used to acquire such Stock or Stock Equivalents capital stock shall be contributed by Holdings to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (ias common equity) and (ii); provided that the ) for additional purposes not contemplated by subclause (i) above in an aggregate principal amount at any time outstanding pursuant with respect to this subclause clause (iiiii) shall not exceed exceeding $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Date date hereof and listed on Schedule 10.5 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of any Investment made all Investments pursuant to this clause (d) is not increased at any time above the amount of such Investment Investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Datedate hereof;
(e) Investments in Hedge Agreements permitted by Section 10.1(A)(h);
(f) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investmentbusiness;
(fg) Investments to the extent that payment for such Investments is made solely with Stock or Stock Equivalents capital stock of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitionsnon-cash proceeds of sales, transfers and other dispositions of assets to the extent permitted by Section 10.4(b);
(i) Investments in any Guarantor (including but not limited to other than Holdings) or the Borrower;
(ij) minority (A) Investments constituting Permitted Acquisitions and Investments in Unrestricted Subsidiaries, (iiB) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Foreign Subsidiaries, (iii) provided that the aggregate amount of any such Investments in Merchant Acquisition and Processing Alliances clauses (regardless of the form of legal entityA) and (iv) Investments in Subsidiaries that are not Credit PartiesB), in each case as valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, made by the Borrower or any Restricted Subsidiary in an aggregate amount pursuant to this clause (i) thatany Restricted Foreign Subsidiary, shall not exceed the 20% of Total Assets at the time each of such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4);
(k) Capital Expenditures permitted under Section 10.11;
(l) Investments made to repurchase or retire Stock or Stock Equivalents common stock of the Borrower or any direct or indirect parent thereof Holdings owned by any an employee or any stock ownership plan or key employee stock ownership plan of Holdings or the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6Borrower;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
additional Investments (n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) including Investments in Minority Investments and Unrestricted Subsidiaries, but excluding Investments in Restricted Foreign Subsidiaries), as valued at the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date fair market value of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, Investment at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount at the time of such Investment not in excess of the Available Amount at such time plus an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount shall not exceed the amount of such Investment valued at the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since such Investment at the Initial Effectiveness Datetime such Investment was made); and
(n) Investments permitted under Section 10.6.
Appears in 1 contract
Samples: Credit Agreement (Accellent Corp.)
Limitation on Investments. The Borrower will notMake or hold, and will not permit directly or indirectly, any of the Restricted Subsidiaries to make any Investment Investments, except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were made;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(b) Investments by Holdings, the Borrower or any of their Subsidiaries in cash and Cash Equivalents and Investments in assets that were Cash Equivalents when such Investment was made;
(c) Investments by Holdings or any of the Subsidiaries in the Borrower or any of the Subsidiaries; provided that (x) any Investment made by any Subsidiary that is not a Loan Party in any Loan Party pursuant to this Section 6.06(c) shall be subordinated in right of payment to the Loans pursuant to the Subordinated Intercompany Note and (y) the aggregate amount of such Investments in Subsidiaries that are not Loan Parties shall not exceed $1,000,000 at any one time outstanding;
(d) guarantees by Holdings or any of its Subsidiaries of leases (other than Capital Leases) or of other obligations of the Borrower or any of the Subsidiaries that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(e) loans or advances to officers, directors, managers and employees of Holdings or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes, (ii) in connection with such Person’s purchase of Equity Interests of Holdings directly from such issuing entity (provided that the amount of such loans and advances shall be contributed to the Borrower in cash as common equity) and (iii) for any other purpose not described in the foregoing clauses (i) and (ii); provided that the aggregate principal amount of all loans and advances outstanding at any time under this Section 6.06(e) shall not exceed $500,000;
(f) Investments to the extent that payment for such Investments is made solely with Equity Interests (other than Disqualified Equity Interests) of Holdings;
(g) Investments by the Borrower or any of the Subsidiaries in joint ventures or similar arrangements in an aggregate amount at any one time outstanding not to exceed $1,000,000 (in each case, determined on the date such Investment is made, with the fair market value of each Investment being measured at the time made and without giving effect to subsequent changes in value);
(h) Investments (including debt obligations and Equity Interests) received in the ordinary course of business by the Borrower or any Subsidiary in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, suppliers and customers arising out of the ordinary course of business or upon the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(i) Investments by any Subsidiary that is not a Loan Party in any other Subsidiary that is not a Loan Party;
(j) Investments (i) existing or contemplated pursuant to legally binding written commitments on the Closing Date and set forth on Schedule 6.06 and any modification, replacement, renewal or extension thereof and (ii) existing on the Closing Date by Holdings or any Subsidiary in the Borrower or any other Subsidiary and any modification, replacement, renewal or extension thereof; provided that the amount of the original Investment is not increased except by the terms of such original Investment as set forth on Schedule 6.06 or as otherwise permitted by this Section 6.06;
(k) Investments in Swap Contracts permitted under Section 6.01(f);
(l) Investments arising as a result of payments permitted by Section 6.07(a);
(m) consummation of the Transactions pursuant to and in accordance with the Loan Documents;
(n) Investments arising directly out of the receipt by the Borrower or any Subsidiary of non-cash consideration for any sale of assets permitted under Section 6.04; provided that, in the case of any sale made in reliance on Section 6.04(f), such non-cash consideration shall in no event exceed 25% of the total consideration received for such sale;
(o) Investments consisting of the licensing or contribution of Intellectual Property pursuant to joint marketing arrangements with other persons;
(p) Investments in the ordinary course of business consisting of UCC Article 3 endorsements for collection or deposit and UCC Article 4 customary trade arrangements with customers consistent with past practices;
(pq) to the extent constituting Investments, purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of Intellectual Property, in each case in the ordinary course of business;
(r) advances of payroll payments to employees in the ordinary course of business;
(qs) Guarantee Obligations loans or advances by the Borrower to Holdings in an aggregate amount not to exceed the amount of Restricted Payments permitted to be made to Holdings in accordance with Section 6.05;
(t) so long as no Event of Default shall have occurred and be continuing or would result therefrom, additional Investments in an aggregate amount at any one time outstanding not to exceed $3,000,000; provided that no Investment may be made pursuant to this Section 6.06(t) in any Subsidiary for the purpose of making a Restricted Payment prohibited pursuant to Section 6.05;
(u) Investments in FreightCar (Shanghai) Trading Co., Ltd. to fund operations and overhead expenses in an aggregate amount not to exceed $500,000 in any fiscal year;
(v) [reserved];
(w) Investments (i) funded solely with deposits from customers or (ii) funded partially with deposits from customers; provided, that any portion of such Investment not funded by customer deposits shall be required to be permitted under another clause of this Section 6.06; and
(x) to the extent constituting Investments, guarantee obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) Lease Obligations), customer contracts or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.
Appears in 1 contract
Samples: Credit Agreement (Pacific Investment Management Co LLC)
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to make any Investment except, subject to the Cash Management Order, the Tax Order, the Wages Order and any other orders of the Bankruptcy Court:
(a) extensions of trade credit and credit, asset purchases (including purchases of inventory, fuel (including all forms of nuclear fuel), supplies, materials and equipment) and the licensing or contribution of intellectual property pursuant to joint marketing arrangements or development agreements with other Persons, in each case in the ordinary course of businessbusiness (including in respect of construction or restoration activities);
(b) Investments that were Permitted Investments when such Investments were made;
(c) loans and advances to officers, directors directors, employees and employees consultants of the Borrower (or any direct or indirect parent thereof) or any Subsidiary of its Subsidiaries the Borrower (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower Ultimate Parent (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash cash) and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,00025,000,000 at any one time outstanding;
(d) Investments (i) existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Closing Date as set forth on Schedule 10.5 and any modifications, extensions, renewals or reinvestments thereof and (ii) existing on the Closing Date of the Borrower or any Restricted Subsidiary in the Borrower or any Subsidiary of the Borrower and any modification, extension, renewal or reinvestment thereof, so long as only to the extent that the amount of any Investment made pursuant to this clause (d) is does not increased at any time above exceed the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateset forth on Schedule 10.5;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents (other than Disqualified Stock) of Holdingsthe Borrower (or any direct or indirect parent thereof);
(g) Investments (i) (aA) by the Borrower or any Restricted Subsidiary in any Credit Party, (bB) between or among Restricted Subsidiaries that are not Credit Parties, and (cC) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary of the Borrower that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable, and subject in each case to the Cash Management Orders), ; (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Closing Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would is not exceed in excess of, when combined with, and without duplication, the aggregate amount of Investments made pursuant to the proviso to Section 10.5(h) an amount equal to the sum of (w) $200,000,000 plus (x) $1,000,000,000, when taken together with Investments outstanding the Applicable Equity Amount at such time in reliance on Section 10.5(i)(x) plus (y) if no Event of Default has occurred and is continuing at the Borrower shall be in compliance with time the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such InvestmentInvestment is first made, the Applicable Amount at such time plus (z) to the extent not otherwise included in the determination of the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) (subject in each case to the Cash Management Order); and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions; provided that the aggregate amount of any such Investment, as valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, made by the Borrower or any Subsidiary Guarantor in any Restricted Subsidiary that, after giving effect to such Investment, shall not be a Guarantor, shall not cause the aggregate amount of all such Investments made pursuant to this clause (h) (as so valued at the time each such investment is made) to exceed, when combined with, and without duplication of, the aggregate amount of Investments made pursuant to clause (ii) of Section 10.5(g), an amount equal to the sum of (i) $200,000,000 plus (aaii) the Applicable Equity Amount at such timetime plus (iii) if no Event of Default has occurred and is continuing at the time such Investment is first made, the Applicable Amount at such time plus (iv) to the extent not otherwise included in the determination of the Applicable Equity Amount or the Applicable Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this clause (iv) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made);
(i) Investments (including but not limited to (i) Minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries and (iii) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (w) $500,000,000 plus (x) the Applicable Equity Amount at such time plus (y) if no Event of Default has occurred and is continuing at the time such Investment is first made, the Applicable Amount at such time plus (z) to the extent not otherwise included in the determination of the Applicable Equity Amount or the Applicable Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made);
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof) in an aggregate amount, when combined with distributions made pursuant to Section 10.6(b), not to exceed the limitations set forth in such Section;
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6; provided that the aggregate amount of such loans and advances shall reduce the ability of the Borrower and the Restricted Subsidiaries to make dividends under the applicable clauses of Section 10.6 by such amount;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger merger, amalgamation or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger merger, amalgamation or consolidation;
(s) Investments in Hedge Hedging Agreements permitted by Section 10.1;
(t) Investments arising out of of, or in connection with with, any Permitted Receivables Financing;
(u) Investments in the ordinary course consisting of business in connection with Settlementsdeposits of cash and Permitted Investments as collateral support permitted under Section 10.2;
(v) other Investments, thatwhich, at when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(ii) from the time each such Investment is madeClosing Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by Section 10.6(c) and (iii) all dividends paid pursuant to Section 10.6(c), would shall not exceed the sum of an amount equal to (w) $250,000,000 plus (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at the time such timeInvestments are made plus (y) if no Event of Default has occurred and is continuing at the time such Investment is first made, the Applicable Amount at such time plus (z) to the extent not otherwise included in the determination of the Applicable Equity Amount or the Applicable Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made);
(w) Investments to the extent constituting Investments, transactions pursuant to the Shared Services Agreement, transactions pursuant to the Tax Sharing Agreements permitted under Section 10.6(d)(i) or transactions disclosed in connection with any transaction permitted Budget approved by Section 10.3; andAdministrative Agent and the Joint Lead Arrangers;
(x) Investments consisting of licensing purchases and acquisitions of intellectual property with other Persons assets and services in the ordinary course of businessbusiness (including in respect of construction or restoration activities);
(y) Investments constituting contributions in the ordinary course of business consisting of Article 3 endorsements for collection or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; anddeposit and Article 4 customary trade arrangements with customers consistent with past practice;
(z) to the extent constituting Investments, any payments made or obligations acquired pursuant to the Wages Order;
(aa) Investments consisting of Indebtedness permitted by Section 10.1 (but only to the extent such Indebtedness was permitted without reference to Section 10.5) or fundamental changes permitted by Section 10.3;
(bb) Investments relating to pension trusts;
(cc) Investments by any Credit Party Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by the Borrower and the Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the intercompany Investment being invested in one or more Credit Parties;
(dd) Investments relating to nuclear decommission trusts and nuclear insurance and self-insurance organizations or arrangements;
(ee) Investments in the form of, or pursuant to, 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 or other fuel or commodities, unitization agreements, pooling agreements, 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 each case, made or entered into in the ordinary course of business; and
(ff) Investments in wind or other renewable energy projects or in any nuclear power or energy joint venture in an aggregate amount not to exceed $200,000,000 at any time outstanding; provided that, notwithstanding the fair market value definition of Excluded Stock and Stock Equivalents, all Stock and Stock Equivalents representing any such Investment shall be pledged to the Collateral Agent for the benefit of the Secured Parties. Notwithstanding anything to the contrary contained in this Agreement, the Borrower and the Restricted Subsidiaries may not rely on clause (g), (h), (i) or (j) of this Section 10.5 to directly or indirectly make an Investment of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Dateor any portion of one or more Baseload Generation Assets.
Appears in 1 contract
Samples: Senior Secured Debtor in Possession Credit Agreement (Energy Future Competitive Holdings Co LLC)
Limitation on Investments. The Borrower will notMake any advance, and will not permit loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes, debentures or other debt securities of, or any assets constituting an ongoing business from, or make any other investment in, any other Person (all of the Restricted Subsidiaries to make any Investment foregoing, “Investments”), except:
(a) extensions of trade credit and asset purchases in or the ordinary course holding of business;
(b) Investments that were Permitted Investments when such Investments were made;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising receivables in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(ob) Investments investments in cash and Cash Equivalents;
(c) [reserved];
(d) loans and advances to employees, officers, directors, managers and consultants of Holdings (or any direct or indirect parent company thereof to the extent relating to the business of Holdings, the US Borrower and the Restricted Subsidiaries), the US Borrower or any Restricted Subsidiaries of the US Borrower in the ordinary course of business consisting of endorsements (i) for collection or deposit reasonable and customary trade arrangements with customers consistent with past practices;
business-related travel, entertainment, relocation and analogous ordinary business purposes, (pii) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or cash in connection with such acquisitionPerson’s purchase of Capital Stock of Holdings (or any direct or indirect parent thereof; provided that, merger or consolidation and were in existence on the date amount of such acquisition, merger or consolidation;
loans and advances used to acquire such Capital Stock shall be contributed to Holdings in cash) and (siii) Investments for any other purpose in Hedge Agreements permitted by Section 10.1;
an aggregate principal amount outstanding under clauses (ti) Investments arising out of or in connection with any Permitted Receivables Financing;
through (uiii) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, thatnot to exceed, at any year, the time each such Investment is made, would not exceed the sum greater of (xA) $750,000,000 plus 3,000,000 and (yB) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making 0.50% of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at Total Assets as of such time;
(we) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons assets useful in the ordinary course business of business;
(y) Investments constituting contributions the US Borrower and its Restricted Subsidiaries made by the US Borrower or other dispositions any of its Restricted Subsidiaries with the proceeds of any Foreign Reinvestment Deferred Amount; provided, that if the underlying Asset Sale or Recovery Event was with respect to a Loan Party, then such Investment shall be consummated by the US Borrower or any Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.Guarantor;
Appears in 1 contract
Samples: Credit Agreement (Continental Building Products, Inc.)
Limitation on Investments. The Borrower will notMake any advance, and will not permit loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes, debentures or other debt securities of, or any assets constituting an ongoing business from, or make any other investment in, any other Person (all of the Restricted Subsidiaries to make any Investment foregoing, “Investments”), except:
(a) (i) extensions of trade credit in the ordinary course of business and asset (ii) purchases and acquisitions of inventory, supplies, materials and equipment or purchases of contract rights or licenses or leases of Intellectual Property in each case in the ordinary course of business, to the extent such purchases and acquisitions constitute Investments;
(b) Investments that were Permitted Investments when such Investments were madein Cash Equivalents and by Foreign Subsidiaries in Foreign Cash Equivalents;
(c) Investments arising in connection with the incurrence of Indebtedness permitted by Section 7.2(b) and (e);
(d) loans and advances to officers, directors and employees of Superholdings, Holdings, the Borrower (or any direct Restricted Subsidiaries of the Borrower in the ordinary course of business in an aggregate amount for Superholdings Holdings, the Borrower and Restricted Subsidiaries of the Borrower not to exceed $3,000,000 (excluding (for purposes of such cap) tuition advances, travel and entertainment expenses, but including relocation expenses) at any one time outstanding;
(e) additional Investments so long as the aggregate amount thereof (determined as the amount originally advanced, loaned or indirect parent otherwise invested, less any returns on the respective investment not to exceed the original amount invested) at no time exceeds the sum of (i) $25,000,000, plus (ii) an amount equal to the Available Amount accumulated pursuant to clause ii. of the definition thereof, plus (iii) so long as no Default or Event of Default has occurred and is continuing or will result therefrom, an amount equal to the Available Amount, less the amounts available pursuant to the foregoing clause (e)(ii); provided that no Investment may be made pursuant to this clause (e) in any Unrestricted Subsidiary for the purpose of making a Restricted Payment prohibited pursuant to Section 7.6;
(f) Investments (other than those relating to the incurrence of Indebtedness permitted by Section 7.8(c)) by the Borrower or any of its Subsidiaries in the Borrower or any Person that, prior to such Investment, is a Subsidiary Guarantor;
(g) Permitted Acquisitions;
(h) loans by the Borrower or any of its Restricted Subsidiaries to the employees, officers or directors of Superholdings, Holdings, the Borrower or any of its Restricted Subsidiaries in connection with management incentive plans; provided that such loans represent cashless transactions pursuant to which such employees, officers or directors directly invest the proceeds of such loans in the Capital Stock of Superholdings;
(i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes Investments (including employee payroll advances), (iidebt obligations) received in the ordinary course of business by the Borrower or any Subsidiary in connection with such Person’s purchase the bankruptcy or reorganization of Stock or Stock Equivalents suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising out of the ordinary course of business;
(j) Investments by any Excluded Subsidiary in other Excluded Subsidiaries;
(k) Investments of the Borrower (or any direct Restricted Subsidiary under Swap Contracts permitted hereunder;
(l) Investments by any Loan Party in a Joint Venture or indirect parent thereof); provided that, an Excluded Subsidiary (including Investments (x) consisting of Dispositions of Property to such Excluded Subsidiary to the extent the consideration paid by such loans and advances are made in cashExcluded Subsidiary for such Property is less than the fair market value thereof, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to as reasonably determined by the Borrower in cash and (iiiy) for purposes not described in the foregoing subclauses (iconstituting Indebtedness permitted to be incurred pursuant to Section 7.2(h) and (iii); ), provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall Permitted Non-Guarantor Investment Amount at such time after giving effect thereto does not exceed $10,000,000the Maximum Investment Amount;
(dm) Investments existing in existence on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Closing Date and listed on Schedule 7.8, and, in each case, any extensions, extensions or renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (dm) is not increased at any time above the amount of such Investment existing onset forth on Schedule 7.8;
(i) Investments constituting loans or advances made in lieu of Restricted Payments permitted to be made pursuant to Section 7.6, (ii) Investments arising as the result payments made pursuant to Section 7.9 and (iii) Investments arising directly out of the receipt by the Borrower or made any Restricted Subsidiary of non-cash consideration for any sale of assets permitted under Section 7.5; provided that such non-cash consideration shall in no event exceed 25% of the total consideration received for such sale;
(o) Subsidiaries may be established or created, if (A) to the extent such new Subsidiary is a Domestic Subsidiary, such Subsidiary complies with the provisions of Section 6.10(c) and (B) if such new Subsidiary is an Excluded Subsidiary, such Subsidiary complies with the provisions of Section 6.10(d), provided, that, in each case, to the extent such new Subsidiary is created solely for the purpose of consummating a merger transaction pursuant to a Permitted Acquisition, and such new Subsidiary at no time holds any assets or liabilities other than any merger consideration contributed to it contemporaneously with the closing of such merger transactions, such new Subsidiary shall not be required to take the actions set forth in Section 6.10(c) or Section 6.10(d), as applicable, until the respective acquisition is consummated (at which time the surviving entity of the respective merger transaction shall be required to so comply within ten Business Days);
(p) Investments of any Person in existence at the time such Person becomes a Restricted Subsidiary of the Borrower or pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Person becomes a Restricted Subsidiary; provided such Investment was made) plus (aa) not made in connection with or anticipation of such Person becoming a Restricted Subsidiary of the Applicable Equity Amount at such timeBorrower;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(lq) Investments consisting of dividends permitted under Section 10.6the licensing or contribution of Intellectual Property pursuant to joint marketing arrangements with other persons;
(mr) loans and advances to any direct or indirect parent of the Borrower Investment in lieu of, and not in excess of the amount of, dividends a Foreign Subsidiary to the extent permitted to be made to such parent Investment is substantially contemporaneously repaid in accordance full with Section 10.6a dividend or other distribution from such Foreign Subsidiary;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(os) Investments in the ordinary course of business consisting of UCC Article 3 endorsements for collection or deposit and UCC Article 4 customary trade arrangements with customers consistent with past practices;; and
(pt) advances of payroll payments to employees employees, or fee payments to directors or consultants, in the ordinary course of business;
(q) Guarantee Obligations . It is further understood and agreed that for purposes of determining the Borrower or value of any Restricted Subsidiary Investment outstanding for purposes of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 7.8, such amount shall be deemed to be the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date amount of such acquisitionInvestment when made, merger purchased or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with acquired less any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each returns on such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since original amount invested). Notwithstanding the Initial Effectiveness Dateforegoing, no Investment in an Unrestricted Subsidiary is permitted under this Section 7.8 unless such Investment is permitted pursuant to clause (e) or (l) above.
Appears in 1 contract
Limitation on Investments. The Borrower will notMake any advance, and will not permit loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes, debentures or other debt securities of, or all or substantially all of the Restricted Subsidiaries to assets of an unrelated Person or a division of an unrelated Person, or make any Investment other investment in, any other Person (all of the foregoing, "Investments"), except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madein Cash Equivalents;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) Investments arising in connection with such Person’s purchase the incurrence of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (iIndebtedness permitted by Section 6.2(b) and (iic); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant loans and advances to legally binding written commitments in existence onemployees of Holdings, the 2014 July Repricing Effective Date Borrower or any Subsidiaries of the Borrower in the ordinary course of business (including, without limitation, for travel, entertainment and any extensionsrelocation expenses) in an aggregate amount for Holdings, renewals or reinvestments thereof, so long as the amount Borrower and Subsidiaries of any Investment made pursuant the Borrower not to this clause (d) is not increased exceed $1,000,000 at any one time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateoutstanding;
(e) Investments received in connection with (other than those relating to the bankruptcy incurrence of Indebtedness permitted by Section 6.7(c)) by Holdings, the Borrower or reorganization any of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising Borrower's Subsidiaries in the ordinary course of business Borrower or upon foreclosure with respect any Person that, prior to any secured Investment or other transfer of title with respect to any secured such Investment, is a Subsidiary Guarantor;
(f) Investments to arising in connection with the extent that payment for such Investments is made with Stock or Stock Equivalents of HoldingsHoldings Subordinated Guaranty;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before Oil and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit PartiesGas Agreements;
(h) Investments constituting Permitted Acquisitionsthe acquisition of the beneficial interests in the Xxxxxxx Trust not already held by the Borrower, so long as after giving effect to such acquisition all beneficial interests of the Xxxxxxx Trust are held by the Borrower for aggregate consideration not to exceed $3,000,000;
(i) Investments (including but not limited loans by a Grantor to the Parent or any of its Subsidiaries so long as (i) minority Investments no Parent Event of Default has occurred and Investments in Unrestricted Subsidiaries, is continuing; (ii) Investments no Default or Event of Default shall have occurred and be continuing prior and after giving effect thereto without giving effect in joint ventures (regardless any fiscal quarter of the form of legal entity) Borrower or similar Persons that do not constitute Restricted Subsidiaries, at any time to any Cure Amount provided for in Section 7.2 and the Borrower is in compliance with Section 6.1 without giving effect to Section 7.2; and (iii) Investments in Merchant Acquisition and Processing Alliances (regardless any such loans are represented by a note, which shall be pledged to the Administrative Agent for the benefit of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount Lenders pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time5.9;
(j) Investments constituting non-cash proceeds made in connection with the acquisition of Dispositions (i) the Capital Stock of any Person, so long as (x) after giving effect to such acquisition, such Person becomes a Subsidiary Guarantor, (y) the Borrower complies with Section 5.9 and (z) such Person is engaged in the Oil and Gas Business; and (ii) all or substantially all of the assets of an unrelated Person or a division of an unrelated Person, in each case engaged in the Oil and Gas Business; provided the aggregate amount of such Investments pursuant to this Section 6.7(j) shall not exceed $100,000,000 during the extent permitted by Section 10.4;term of this Agreement; and
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount fiscal year not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date$25,000,000.
Appears in 1 contract
Limitation on Investments. The Parent Borrower will not, and will not permit any of the Restricted Subsidiaries to to, make any Investment except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madeInvestments;
(c) loans and advances to officers, directors and employees of the Parent Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries or to Physicians with whom the Parent Borrower or any of its Subsidiaries have contractual relationships (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Parent Borrower (or any direct or indirect parent thereof); provided that, ) to the extent such loans and advances are made in cash, that the amount of such loans and advances used to acquire such Stock is directly or Stock Equivalents shall be indirectly contributed to the Parent Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the , in an aggregate principal amount outstanding pursuant to this subclause (iii) shall not to exceed $10,000,00020,000,000;
(d) Investments existing on, or made contemplated as of, the Closing Date and either (x) constituting Indebtedness that is permitted pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date Section 10.1(g)(ii) or (y) listed on Schedule 10.5 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of any Investment made all Investments pursuant to this clause (d) is not increased at any time above the amount of such Investment Investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Closing Date;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings or Hercules Holdings;
(g) Investments (i) (a) by the Parent Borrower or any Restricted Subsidiary in any Credit PartySubsidiary Borrower, (b) between or among 1993 Indenture Restricted Subsidiaries, (c) between or among Restricted Subsidiaries that are not Credit Partiesneither Subsidiary Borrowers nor 1993 Indenture Restricted Subsidiaries, and (cd) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Parent Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance advance) and (e) by the Parent Borrower or such any Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary Subsidiary; provided that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part used, directly or as a result of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more substantially concurrent transfers, to repay intercompany Indebtedness owed to any Credit PartiesParty;
(h) Investments constituting Permitted Acquisitions;
(i) additional Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate principal amount pursuant at any time not to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time500,000,000;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Parent Borrower or any direct or indirect parent thereof owned by any employee or any employee stock ownership plan or key employee stock ownership plan of the Parent Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Parent Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Parent Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments by 1993 Indenture Restricted Subsidiaries of accounts receivable and related assets in Hedge Agreements permitted by Section 10.1ABL Entities;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments by the Parent Borrower in the ordinary course European Subsidiary Borrower (as defined in the CF Agreement) arising as a result of business any payment made by the Parent Borrower in connection with Settlementsrespect of European-1 Tranche Term Loans (as defined in the CF Agreement) pursuant to Section 5.2(a)(ii) of the CF Agreement;
(v) other Investmentsany redemption by Healthtrust, thator transfer to Healthtrust or the Parent Borrower, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before shares of Stock of Healthtrust held by Columbia SDH and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such timeEpic Properties;
(w) Investments intercompany transfers of creditor positions (i) in connection with respect of Indebtedness outstanding pursuant to Section 10.1(a), 10.1(g)(ii) or 10.1(i), and (ii) in respect of any transaction permitted by Section 10.3other intercompany Indebtedness; andprovided that the transfer of credit positions described in this clause (ii) is used, directly or as a result of substantially concurrent transfers, to repay intercompany Indebtedness owed to any Credit Party;
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;constituting Indebtedness outstanding pursuant to Sections 10.1(a)(z) and 10.1(i)(z); and
(y) other Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed satisfy the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness DatePayment Conditions.
Appears in 1 contract
Limitation on Investments. The Borrower and the Parent Guarantors will not, and will not permit any of the Restricted Subsidiaries to to, make any advance, loan, extensions of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets of, or make any other Investment in, any Person, except:
: (a) extensions of trade credit and asset purchases in the ordinary course of business;
; (b) Investments that were Permitted Investments when such Investments were made;
Investments; (c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries in an aggregate principal amount at any time outstanding under this clause (ic) for reasonable and customary business(determined without regard to any write-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock downs or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount write-offs of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iiiadvances) for purposes not described in the foregoing subclauses (i) and (ii)exceeding $30,000,000; provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Date date hereof and listed on Schedule 10.5 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of any Investment made all Investments pursuant to this clause (d) is not increased at any time above the amount of such Investment Investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Date;
date hereof; (e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
business; (f) Investments to the extent that payment for such Investments is made solely with Capital Stock of Holdings or Stock Equivalents of Holdings;
Parent; (g) Investments (i) (a) by in any Guarantor or the Borrower or any Restricted Subsidiary and (ii) in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit PartiesGuarantors, and in the case of this clause (c) consisting g)(ii), in an aggregate amount not to exceed the Applicable Amount at any time outstanding (valued net in the case of intercompany Investments loans); provided that intercompany current liabilities incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among of the Borrower and the its Restricted Subsidiaries (provided that shall not be included in calculating the limitation in this paragraph at any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
time; (h) Investments constituting Permitted Acquisitions;
; provided that (i) the aggregate amount of any such investment, as valued at the fair market value of such investment at the time each such investment is made, made by Holdings, the Borrower or any Restricted Subsidiary in any Restricted Foreign Subsidiary, to the extent that such Restricted Foreign Subsidiary does not become a Subsidiary Guarantor pursuant to Section 9.11 and does not enter into the guarantee and collateral arrangements contemplated thereby, shall not exceed the Applicable Amount at the time of such investment plus an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such investment (which amount shall not exceed the amount of such investment valued at the fair market value of such investment at the time such investment was made); and (ii) the Borrower shall have delivered to the Administrative Agent, no later than five Business Days after the date on which such Investment is consummated, a certificate of an Authorized Officer, in form and substance reasonably satisfactory to the Administrative Agent, certifying that all of the requirements set forth in the definition of “Permitted Acquisition” have been satisfied or will be satisfied on or prior to the consummation of such Investment; (i) (i) other Investments (including but not limited to (i) minority Investments in Minority Investments and Investments in Unrestricted Subsidiaries, ) and (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons entities that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case case, as valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (zy) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
); (j) dividends permitted under Section 10.6; (k) Investments in Hedge Agreements; (l) Investments constituting non-cash proceeds of Dispositions sales, transfers and other dispositions of assets to the extent permitted by Section 10.4;
10.4(b) or (kc); (m) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends Guarantee Obligations and other Indebtedness otherwise permitted under Section 10.6;
10.1; (mn) loans and advances made to any direct or indirect parent of the Borrower Parent Guarantor in lieu of, and not in excess of the amount of, dividends any Restricted Payment to the extent permitted to be made pursuant to such parent in accordance with Section 10.6;
; (no) Investments consisting of extensions of credit xxxx xxxxxxx money required in connection with Permitted Acquisitions made not to exceed $40,000,000 in the nature aggregate at any time; (p) Investments constituting deposits or pledges permitted under Section 10.2; (q) advances of accounts receivable payroll payments and expenses to directors, officers, employees, members of management or notes receivable arising from the grant of trade credit consultants in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
; (or) Investments in the ordinary course of business consisting of endorsements for collection or deposit sales of assets and customary trade arrangements with customers consistent with past practices;
Permitted Sale Leasebacks permitted under Section 10.4 and 10.8; (ps) advances of payroll payments to employees in the ordinary course of business;
Acquisition; and (qt) Guarantee Obligations of acquisitions by the Borrower or any Restricted Subsidiary Parent Guarantor of leases (other than Capital Leases) obligations of one or more directors, officers, employees, members or management or consultants of other obligations that do not constitute Indebtednessany Parent Guarantor, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger Borrower or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or its Subsidiaries in connection with such acquisition, merger or consolidation and were in existence on the date person’s acquisition of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out Capital Stock of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.Holdings,
Appears in 1 contract
Limitation on Investments. The Borrower Company will not, and will not permit any of the Restricted its Subsidiaries to, make or commit to make any Investment exceptadvance, loan, extension of credit or capital contribution to, or purchase of any stock, bonds, notes, debentures or other securities of, or make any other investment in, any Person, except as otherwise permitted by subsection 11.10 and except that:
(a) extensions each of trade credit the Company and asset purchases its Subsidiaries may make or commit to make investments in Cash Equivalents;
(b) each of the Company and its Subsidiaries may make or commit to make investments in accounts, contract rights and chattel paper (as defined in the Uniform Commercial Code), put and call foreign exchange options to the extent necessary to hedge foreign exchange exposures or foreign exchange spot and forward contracts, and notes receivable, arising or acquired in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madebusiness and in Interest Rate Agreements;
(c) loans and advances the Company may make or commit to officers, directors and employees make any loan or advance or purchase any securities constituting a Restricted Payment permitted by subsection 11.7;
(d) if in the reasonable judgment of the Borrower Company, any customer is deemed to be in a reorganization or unable to make a timely cash payment on Indebtedness or other obligations of such customer owing to it, each of the Company and its Subsidiaries may invest or commit to invest in securities issued by such customer or any Affiliate thereof (other than any Affiliate of the Company) in lieu of cash payment; provided that the Company or such Subsidiary, as the case may be, has paid no new consideration (other than forgiveness of Indebtedness or other obligations) therefor;
(e) each of the Company and its Subsidiaries may make or commit to make Investments; provided that (i) no Default or Event of Default has occurred and is continuing at the time of such Investment (or would result therefrom) and (ii) the aggregate Investment Consideration (as reduced by the amount equal to the Net Proceeds received by the Company and its Subsidiaries from any direct or indirect parent thereofNet Proceeds Event on account of any Resale Transaction) with respect to all such Investments plus Intercompany Investments made pursuant to subsection 11.8(j)(iii)(z) does not exceed $7,500,000 per calendar year; provided, further, that none of the Company or any of its Subsidiaries shall commit to make any Investment unless such Investment is then permitted hereunder;
(f) each of the Company and its Subsidiaries may make or commit to make loans to officers and directors of the Company and its Subsidiaries in the ordinary course of business in an aggregate principal amount which, in the aggregate with all then outstanding Contingent Obligations permitted by subsection 11.4(h), does not exceed $3,000,000 at any one time outstanding from the Company and its Subsidiaries to all such officers and directors;
(g) the Company (and, in the case of clause (ii) below, the Company's Domestic Subsidiaries) may make or commit to make investments in (i) for reasonable open-market purchases of common stock of Revlon and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents any other investment available to highly compensated employees under any "excess 401-(k) plan" of the Borrower Company (or any direct or indirect parent thereofof its Domestic Subsidiaries, as applicable); provided that, in each case to the extent necessary to permit the Company (or such loans and advances are made in cashDomestic Subsidiary, the amount of as applicable) to satisfy its obligations under such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii"excess 401-(k) plan" for purposes not described in the foregoing subclauses (i) and (ii)highly compensated employees; provided that the aggregate principal amount outstanding of such purchases and other investments under this subsection 11.8(g), does not exceed $8,000,000 in any year and (ii) amounts available pursuant to this subclause (iiisubsection 11.8(g) shall to 119 be utilized for investments during any year which are not exceed $10,000,000utilized during such year may be carried forward and utilized in any succeeding year;
(dh) Investments existing onsubject to the limitations set forth in subsection 11.7(a)(iii), each of the Company and its Subsidiaries may make or made pursuant commit to legally binding written commitments in existence on, the 2014 July Repricing Effective Date and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant make investments from time to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date;
(e) Investments received in connection with the bankruptcy transactions contemplated by subsection 11.7(a)(iii);
(i) RIC may acquire or reorganization commit to acquire the German Distribution Shares in connection with the exercise of suppliers the German Distribution Option in accordance with its terms; and
(j) each of the Company and its Subsidiaries may make or customers and in settlement commit to make any advance, loan, extension of delinquent obligations credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of, and or make any other disputes withinvestment in, customers arising any of the Company or any Subsidiary (each an "Intercompany Investment"); provided that with respect to any Intercompany Investment made after the date hereof by the Company or any Domestic Subsidiary in any Subsidiary that is not a Guarantor, (i) such Intercompany Investment shall only be made in the ordinary course of business or upon foreclosure consistent with past practice, (ii) if such Intercompany Investment is made in cash as an advance, loan or other extension of credit, such Intercompany Investment shall be evidenced by an intercompany note which, in the case of any such note held by the Company or any Subsidiary that is a Guarantor, shall be promptly pledged to the Administrative Agent, for the benefit of the holders of the Bank Obligations, pursuant to the relevant Security Documents and which, if the principal amount of such note is determined by reference to a grid, schedule or exhibit attached thereto which requires the holder thereof to update such grid, schedule or exhibit to evidence any advance, loan or other extension of credit made pursuant to such note, shall require the grid, schedule or exhibit attached thereto to be updated no more frequently than four times per calendar year on or about the dates financial statements are required to be delivered to the Administrative Agent pursuant to subsections 10.1(a) and 10.1(c) hereof and (iii) if such Intercompany Investment is made in cash as a capital contribution, such Intercompany Investment shall only be made in a Foreign Subsidiary (w) in an aggregate amount such that after giving effect thereto, such Foreign Subsidiary (A) is in compliance with all material Requirements of Law applicable to it with respect to capitalization, (B) has sufficient capital with which to conduct its business in accordance with past practice and (C) is not undercapitalized to such an extent that, solely as a result of such undercapitalization, (I) any secured Investment or other transfer creditor of title with respect such Foreign Subsidiary would be deemed under the laws of any relevant jurisdiction to owe a fiduciary duty to any secured Investment;
other creditor of such Foreign Subsidiary or (fII) Investments if applicable, the Local Loans made or the Acceptances created by the relevant Local Fronting Lender to such Foreign Subsidiary would be subordinated to any obligations of such Foreign Subsidiary owing to any other Person, (x) to the extent that on the date of such contribution, the cash contributed to the capital of the applicable Foreign Subsidiary, if loaned or advanced through an intercompany loan evidenced by a note, would either (A) cause the Company or the Domestic Subsidiary of the Company acquiring such note to be deemed to be doing business in any jurisdiction outside of the United States or otherwise subject to taxation or regulation in such jurisdiction or (B) require the Foreign Subsidiary issuing such note to withhold from any payment for such Investments is made with Stock in respect thereof any amount now or Stock Equivalents of Holdings;
(g) Investments (i) (a) hereafter imposed, levied, collected or assessed by the Borrower any relevant jurisdiction, or any Restricted Subsidiary in any Credit Partypolitical subdivision or taxing authority thereof or therein, (by) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any sale, transfer or other disposition of capital stock or other equity interests or assets of such intercompany Investment in connection with cash management arrangements by a Credit Party in a Foreign Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Partypermitted hereunder, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would capital contribution does not exceed the sum aggregate amount outstanding of (x) $1,000,000,000, when taken together with Investments outstanding at any Indebtedness and other obligations of such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis Foreign Subsidiary owing to the making Company or any of its Domestic Subsidiaries that was in each case created or otherwise incurred on or prior to the date of such Investmentsale, the Applicable Amount at transfer or other disposition and which Indebtedness and other obligations are outstanding immediately prior to such time plus sale, transfer or other disposition or (z) in connection with the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one formation or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) organization of such Investment at the time each such Investment is madeForeign Subsidiary, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(samounts expended pursuant to this subsection 11.8(j)(iii)(z) Investments in Hedge Agreements permitted by Section 10.1;
(tplus amounts expended pursuant to subsection 11.8(e) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would do not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date7,500,000 per calendar year.
Appears in 1 contract
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to make any Investment except:
(a) extensions of trade credit and credit, asset purchases (including purchases of inventory, fuel (including all forms of nuclear fuel), supplies, materials and equipment) and the licensing or contribution of intellectual property pursuant to joint marketing arrangements or development agreements with other Persons, in each case in the ordinary course of business;business (including in respect of construction or restoration activities); #4812-2844-92899582-0297
(b) Investments that were Permitted Investments when such Investments were made;
(c) loans and advances to officers, directors directors, employees and employees consultants of the Borrower (or any direct or indirect parent thereof) or any Subsidiary of its Subsidiaries the Borrower (igi) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (iihii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower Parent (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash cash) and (iiiiiii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,00025,000,000 at any one time outstanding;
(d) Investments (i) existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective date hereofClosing Date as set forth on Schedule 10.5 and any modifications, extensions, renewals or reinvestments thereof and (ii) existing on the date hereofClosing Date of the Borrower or any Restricted Subsidiary in the Borrower or any Subsidiary of the Borrower and any modification, extension, renewal or reinvestment thereof, so long as only to the extent that the amount of any Investment made pursuant to this clause (d) is does not increased at any time above exceed the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateset forth on Schedule 10.5;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents (other than Disqualified Stock) of Holdingsthe Borrower (or any direct or indirect parent thereof);
(g) Investments (i) (aA) by the Borrower or any Restricted Subsidiary in any Credit Party, (bB) between or among Restricted Subsidiaries that are not Credit Parties, and (cC) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary of the Borrower that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), ; (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Closing Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would is not exceed in excess of, when combined with, and without duplication of, the aggregate amount of Investments made pursuant to the proviso to Section 10.5(h), an amount equal to the sum of (w) $1,000,000,000 plus (x) $1,000,000,000, when taken together with Investments outstanding the Applicable Equity Amount at such time in reliance on Section 10.5(i)(x) plus (y) if to the Borrower shall be in compliance with extent that the Senior Consolidated Secured Leverage Test, both before and Debt to Consolidated EBITDA Ratio is not greater than 5.0 to 1.00 after giving effect, on a Pro Forma Basis Basis, to the making of such Investment, the Applicable Amount at such time plus (z) to the extent not otherwise included in the determination of the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made); and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties; #4812-2844-92899582-0297
(h) Investments constituting Permitted Acquisitions; provided that the aggregate amount of any such Investment, as valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, made by the Borrower or any Subsidiary Guarantor in any Restricted Subsidiary that, after giving effect to such Investment, shall not be a Guarantor, shall not cause the aggregate amount of all such Investments made pursuant to this clause (h) (as so valued at the time each such investment is made) to exceed, when combined with, and without duplication of, the aggregate amount of Investments made pursuant to clause (ii) of Section 10.5(g), an amount equal to the sum of (i) $1,000,000,000, plus (aaii) the Applicable Equity Amount at such timetime plus (iii) to the extent the Consolidated Secured Debt to Consolidated EBITDA Ratio is not greater than 5.0 to 1.0 after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount at such time plus (iv) to the extent not otherwise included in the determination of the Applicable Equity Amount or the Applicable Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this clause (iv) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made);
(i) Investments (including but not limited to (i) Minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries and (iii) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (w) $1,000,000,000 plus (x) the Applicable Equity Amount at such time plus (y) to the extent the Consolidated Secured Debt to Consolidated EBITDA Ratio is not greater than 5.0 to 1.00 after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount at such time plus (z) to the extent not otherwise included in the determination of the Applicable Equity Amount or the Applicable Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made);
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof) in an aggregate amount, when combined with distributions made pursuant to Section 10.6(b), not to exceed the limitations set forth in such Section;
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;; provided that the aggregate amount of such loans and advances shall reduce the ability of the Borrower and the Restricted Subsidiaries to make dividends under the applicable clauses of Section 10.6 by such amount; #4812-2844-92899582-0297
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger merger, amalgamation or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger merger, amalgamation or consolidation;
(s) Investments in Hedge Hedging Agreements permitted by Section 10.1;
(t) Investments arising out of of, or in connection with with, any Permitted Receivables Financing;
(u) Investments in the ordinary course consisting of business in connection with Settlementsdeposits of cash and Permitted Investments as collateral support permitted under Section 10.2;
(v) other Investments, thatwhich, when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a)(i) from the Closing Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by Section 10.6(c) and (iii) all dividends paid pursuant to Section 10.6(c), shall not exceed an amount equal to (w) $500,000,000 plus (x) the Applicable Equity Amount at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 Investments are made plus (y) if to the Borrower shall be in compliance with extent the Senior Consolidated Secured Leverage Test, both before and Debt to Consolidated EBITDA Ratio is not greater than 5.0 to 1.0 after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount at such time plus (z) to the extent not otherwise included in the determination of the Applicable Equity Amount or the Applicable Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such timeInvestment at the time such Investment was made);
(w) Investments in connection with any transaction permitted by Section 10.3; and[Reserved];
(x) Investments consisting of licensing purchases and acquisitions of intellectual property with other Persons assets and services in the ordinary course of business;business (including in respect of construction or restoration activities); #4812-2844-92899582-0297
(y) Investments constituting contributions in the ordinary course of business consisting of Article 3 endorsements for collection or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; anddeposit and Article 4 customary trade arrangements with customers consistent with past practice;
(z) Investments made as a part of or in connection with the Transactions, including any payments to be made in connection with the Parent’s and its Subsidiaries’ long-term incentive plan or in respect of tax gross-ups and other deferred compensation;
(aa) Investments consisting of Indebtedness permitted by any Section 10.1 (but only to the extent such Indebtedness was permitted without reference to Section 10.5) or fundamental changes permitted by Section 10.3;
(bb) Investments relating to pension trusts;
(cc) Investments by Credit Party Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by the Borrower and the Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the intercompany Investment being invested in one or more Credit Parties;
(dd) Investments relating to nuclear decommission trusts;
(ee) Investments in the form of, or pursuant to, 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 agreements, 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 each case, made or entered into in the ordinary course of business; and
(ff) Investments in Shell Wind valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (ff) that, at the time each such Investment is made, would not exceed the sum of (w) $1,000,000,000 in the aggregate (of which no portion may be used in fiscal 2007, up to $250,000,000 may be used in fiscal 2008 and up to $300,000,000 may be used in each subsequent fiscal year) plus (x) the Applicable Equity Amount at such time plus (y) to the extent the Consolidated Secured Debt to Consolidated EBITDA Ratio is not greater than 5.0 to 1.0 after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount at such time plus (z) to the extent not otherwise included in the determination of the Applicable Equity Amount or the Applicable Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made).wind or other renewable energy projects or in any nuclear power or energy joint venture in an aggregate amount not to exceed $1,000,000,000 at any time outstanding; provided that, notwithstanding the fair market value definition of Excluded Stock and Stock Equivalents, all dividends Stock and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since Stock Equivalents representing any such Investment shall be pledged to the Initial Effectiveness DateCollateral Agent for the benefit of the Secured Parties.
Appears in 1 contract
Samples: Amendment No. 2 (Energy Future Intermediate Holding CO LLC)
Limitation on Investments. The Borrower will notMake any advance, and will not permit loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes, debentures or other debt securities of, or any assets constituting an ongoing business from, or make any other investment in, any other Person (all of the Restricted Subsidiaries to make any Investment foregoing, “Investments”), except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madein Cash Equivalents;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) Investments arising in connection with such Person’s purchase the incurrence of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereofIndebtedness permitted by Section 7.2(b); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant loans and advances to legally binding written commitments in existence onofficers of the Parent REIT, the 2014 July Repricing Effective Date Borrower or any Subsidiaries of the Borrower in the ordinary course of business (including, without limitation, for travel, entertainment and relocation expenses) in an aggregate amount for the Parent REIT, the Borrower and Subsidiaries of the Borrower not to exceed $250,000 at any extensions, renewals or reinvestments thereofone time outstanding;
(e) any Investments, so long as the amount (i) immediately prior to and immediately after giving effect to such Investment, no Default or Event of any Investment made pursuant Default shall have occurred and be continuing, and (ii) after giving pro forma effect to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence onInvestment, the 2014 July Repricing Effective DateBorrower shall be in compliance with the provisions of Sections 6.9 and 7.1 hereof;
(ef) to the extent constituting Investments, non-cash consideration received in connection with a Disposition permitted under this Agreement;
(g) Investments in Subsidiaries of the Parent REIT existing as of Fourth Amendment Effective Date, Investments in any Subsidiaries of the Parent REIT created after the Fourth Amendment Effective Date and Investments in any Person that, after giving effect to such Investment, shall become a Subsidiary of the Parent REIT;
(h) deposits required by government agencies or public utilities, and other deposits or pledges which constitute Permitted Liens;
(i) Investments received in connection with the bankruptcy or reorganization of suppliers of, or customers and in settlement of delinquent obligations of, accounts and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties)suppliers, in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(oj) Investments consisting of debt securities, equity securities and other non-cash consideration received as consideration for a disposition permitted by this Agreement;
(k) Investments in Unimproved Land including construction draws to tenants in connection with improvements thereon in an amount not to exceed 5% of Total Asset Value as of the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practicesdate any such Investment is made;
(pl) advances of payroll payments lease incentives (1) extended to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments tenants in the ordinary course of business in connection with Settlementsthe form of cash contributions to be used for such tenants’ capital expenditures and building improvements, which in each case generate additional Net Operating Income for the applicable Real Property Asset within twelve months after the date of extension of such lease incentive (provided that this clause (1) shall, for the avoidance of doubt, exclude lease incentives in the form of other preferential lease terms including free rent) and (2) in the form of other preferential lease terms (including free rent) in an aggregate amount under this clause (2) not to exceed $20,000,000 at any time outstanding;
(vm) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, transactions permitted under Section 7.4 to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3extent constituting Investments; and
(xn) other Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party otherwise permitted hereunder in an aggregate amount not to exceed $40,000,000 at any time outstanding. In determining the fair market aggregate amount of Investments outstanding at any particular time: (A) there shall be included as an investment all interest accrued with respect to Indebtedness constituting an Investment unless and until such interest is paid; (B) there shall be deducted in respect of each Investment any amount received as a return of capital; (C) there shall not be deducted in respect of any Investment any amounts received as earnings on such Investment, whether as dividends, interest or otherwise, except that accrued interest included as provided in the foregoing clause (A) shall be deducted when paid; and (D) the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Datethereof.
Appears in 1 contract
Samples: Credit Agreement (Essential Properties Realty Trust, Inc.)
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to make any Investment except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were mademade or Investments in Investment Grade Securities;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash cash) and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Restatement Effective Date as set forth on Schedule 10.5 and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateset forth on Schedule 10.5;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Closing Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would is not exceed the sum in excess of (w) $25,000,000 plus (x) $1,000,000,000, when taken together with Investments outstanding the Applicable Equity Amount at such time in reliance on Section 10.5(i)(x) plus (y) if to the Borrower shall be in compliance with extent the Consolidated Senior Secured Leverage TestDebt to Consolidated EBITDA Ratio is not greater than 4.25 to 1.00, both before and after giving effect, on a Pro Forma Basis Basis, to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, Subsidiaries and (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (w) $100,000,000 plus (x) $1,000,000,000 when taken together with Investments outstanding the Applicable Equity Amount at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if to the Borrower shall be in compliance with extent the Consolidated Senior Secured Leverage TestDebt to Consolidated EBITDA Ratio for the Test Period is not greater than 4.25 to 1.00, both before and after giving effect, on a Pro Forma Basis Basis, to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time);
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in fixed income assets by XXXX consistent with customary practices of portfolio management on the ordinary course part of business in connection with Settlementsso-called “captive” insurance companies of comparable size and scope of activities as XXXX;
(v) other Investments, thatwhich, at when aggregated with (i) all aggregate principal amounts paid pursuant to Section 10.7(a) from the time each such Investment is madeClosing Date and (ii) all loans and advances made to any direct or indirect parent of the Borrower pursuant to Section 10.5(m) in lieu of dividends permitted by Section 10.6(c) and (iii) all dividends paid pursuant to Section 10.6(c), would shall not exceed the sum of an amount equal to (x) $750,000,000 500,000,000 plus (y) if the Borrower shall be in compliance with Applicable Equity Amount at the time such dividends are paid plus (z) to the extent the Consolidated Senior Secured Leverage TestDebt to Consolidated EBITDA Ratio is not greater than 4.25 to 1.00, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) at the Applicable Equity Amount at time such timeInvestment is made;
(w) Investments advances, loans and extensions of credit made by the Borrower or any Restricted Subsidiary to the Borrower or any other Restricted Subsidiary in connection with respect of Permitted Intercompany Indebtedness; provided that the aggregate amount of advances, loans and extensions of credit made by Credit Parties to Restricted Subsidiaries that are not Credit Parties under this clause (w) shall not exceed $100,000,000 at any transaction permitted by Section 10.3; andtime outstanding;
(x) Investments consisting of licensing purchases and acquisitions of intellectual property with other Persons assets and services in the ordinary course of business;
(y) Investments constituting contributions or consisting of licensing of intellectual property pursuant to joint marketing arrangements with other dispositions Persons in the ordinary course of any Foreign Subsidiary to another Foreign Subsidiarybusiness; and
(z) Investments by so long as no Default or Event of Default exists or would exist after giving effect thereto, additional loans and advances to any Credit Party direct or indirect parent of the Borrower and additional Investments, in any Restricted Subsidiary that each case, to the extent the Consolidated Total Debt to Consolidated EBITDA Ratio is not greater than 1.50 to 1.00, both before and after giving effect, on a Credit Party in an aggregate amount not Pro Forma Basis, to exceed the fair market value making of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Dateeach such loan, advance or Investment.
Appears in 1 contract
Limitation on Investments. The Borrower will notLoans and Advances. Make any advance, and will not permit 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 the Restricted Subsidiaries to or any assets constituting a business unit of, or make any Investment other investment in, any Person, except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madeinvestments in Cash Equivalents;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000Guarantee Obligations permitted by Section 7.2;
(d) Investments existing on, loans and advances to employees of the Borrower or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising its Subsidiaries in the ordinary course of business or upon foreclosure with respect (including, without limitation, for travel, entertainment and relocation expenses) in an aggregate amount for the Borrower and its Subsidiaries not to exceed $5,000,000 at any secured Investment or other transfer of title with respect to any secured Investmentone time outstanding;
(e) the Acquisitions and the Bumble Bee Acquisition;
(f) Investments to investments by the extent that payment for such Investments is made with Stock Borrower or Stock Equivalents any of Holdingsits Subsidiaries in the Borrower or any Wholly Owned Subsidiary Guarantor;
(g) Investments loans, advances or investments in existence on the Closing Date and listed on Schedule 7.8(g), and extensions, renewals, modifications or restatements or replacements thereof, provided that no such extension, renewal, modification or restatement shall (i) increase the amount of the original loan, advance or investment, or (aii) adversely affect the interests of the Lenders with respect to such original loan, advance or investment or the interests of the Lenders under this Agreement or any other Loan Document in any respect;
(h) investments made by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted of its Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one any Reinvestment Deferred Amount or more Credit Parties;
(h) Investments constituting Permitted Acquisitionsany Unapplied Excess Cash Flow;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined investments made by the Borrower acting in good faith) or any of its Subsidiaries pursuant to an Asset Swap or with the proceeds of any Contributed Equity, so long as, after giving pro forma effect thereto (as certified to the Administrative Agent by a Responsible Officer prior to consummation of such Investment at the time each such Investment is madeinvestment), in an aggregate amount no Default or Event of Default shall have occurred and be continuing (including, without limitation, pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;7.1); and
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent Capital Expenditures permitted by Section 10.47.7;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.
Appears in 1 contract
Limitation on Investments. The Borrower will notLoans and Advances. Make any advance, and will not permit loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of the Restricted Subsidiaries to or any assets constituting a business unit of, or make any Investment other investment in, any Person, except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madeinvestments in Cash Equivalents;
(c) capital contributions, loans and advances to officers, directors and employees of or other investments made by the Borrower (or to any direct or indirect parent thereof) or Restricted Subsidiary which is a Subsidiary Guarantor and by any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, Restricted Subsidiary to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000Borrower;
(d) Investments existing oncapital contributions, loans or other investments in Subsidiaries and Joint Ventures and investments permitted by subsection 8.5(c), provided that such investments shall be permitted only to the extent that (A) (i) such investments made 69 63 during any fiscal year do not exceed $15,000,000 in the aggregate and are made from funds constituting "Cash from Operations" (as defined in the Partnership Agreement) for such fiscal year and the "Minimum Quarterly Distribution" (as defined in the Partnership Agreement) for all Preference Units for any previous calendar quarter shall have been paid in full, or (ii) such investments are made pursuant from (without duplication of investments permitted in other clauses of this subsection 8.8) proceeds of public offerings of Preference Units or Common Units, and proceeds of extraordinary distributions made by Joint Ventures any of the interests of which is owned by a Restricted Subsidiary or proceeds of distributions made by other Joint Ventures or any Unrestricted Subsidiaries to legally binding written commitments the Borrower and/or Restricted Subsidiaries, in existence oneach case received after the date hereof, the 2014 July Repricing Effective Date and (B) in any extensionssuch case, renewals no Default or reinvestments thereofEvent of Default shall have occurred and be continuing, so long or would occur as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount a result of such Investment existing on, or investment and no such investment shall be made pursuant to legally binding written commitments in existence on, from the 2014 July Repricing Effective Dateproceeds of the Revolving Credit Loans;
(e) Investments received in connection with capital contributions, loans or other investments by Subsidiaries of the bankruptcy Borrower or reorganization of suppliers any Joint Venture to or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course Borrower or any Restricted Subsidiary, provided that no Default or Event of business Default shall have occurred and be continuing, or upon foreclosure with respect to any secured Investment or other transfer would occur as a result of title with respect to any secured Investmentsuch investment;
(f) Investments to the extent that payment for such Investments is made with Stock capital contributions or Stock Equivalents of Holdings;
(g) Investments (i) (a) other investments by the Borrower or any Restricted Subsidiary to any Joint Venture any of the interests in any Credit Partywhich are owned by a Restricted Subsidiary in accordance with the terms of the constitutive documents of such Joint Venture, provided in each such case that (bx) between no Default or among Restricted Subsidiaries that are not Credit PartiesEvent of Default has occurred and is continuing or would result therefrom, and (cy) consisting such Joint Venture exists as of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower Closing Date or such Restricted Subsidiary complies with Section 9.12 capital contributions or other investments are made by funds raised pursuant to clause (d), (g) or (h) of this subsection 8.8;
(g) capital contributions, loans or other investments to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of public offerings of Preference Units or Common Units for the initial Investment being invested purposes described in one or more Credit Partiesthe offering documents for such public offerings;
(h) Investments constituting Permitted Acquisitionscapital contributions, loans or other investments made from cash which would otherwise be required to be distributed to the holders of the Preference Units, the Common Units or the General Partnership Interest pursuant to the Partnership Agreement;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiariesother acquisitions of equity securities of, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiariesassets constituting a business unit of, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties)any Person, in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) provided that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before immediately prior to and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal effect to any repaymentssuch acquisition, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect no Default or Event of any such Investment Default shall have occurred or be continuing (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such timewhether under subsection 8.17 or otherwise);
(j) Investments constituting non-cash capital contributions, loans or other investments made with the proceeds of Dispositions of assets dispositions made pursuant to the extent permitted by Section 10.4;subsections 8.6(b); and
(k) Investments made to repurchase or retire Stock or Stock Equivalents investments described in subsection 8.6(d). 70 64 Notwithstanding the foregoing, the aggregate amount of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not investments made in contemplation of or in connection with such acquisitionJoint Ventures pursuant to paragraphs (d), merger or consolidation (f) and were in existence on the date of such acquisition, merger or consolidation;
(sh) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would above shall not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party 25,000,000 in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Datefiscal year.
Appears in 1 contract
Samples: Credit Agreement (Leviathan Gas Pipeline Partners L P)
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries to to, make any Investment except:
(a) extensions of trade credit and asset purchases of assets and services (including purchases of inventory, supplies and materials) in the ordinary course of business;
(b) Investments in assets that were constituted Permitted Investments when at the time such Investments were made;
(c) loans and advances to officers, directors directors, employees and employees consultants of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash cash) and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,0005,000,000;
(di) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Closing Date as set forth on Schedule 10.5, (ii) Investments existing on the Closing Date of the Borrower or any Subsidiary in any other Subsidiary and (iii) any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateset forth on Schedule 10.5;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents (other than Disqualified Stock not otherwise permitted by Section 10.1) of Holdingsthe Borrower (or any direct or indirect parent thereof);
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (bother) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is an Excluded Subsidiary of the type listed in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), clauses (iib) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause through (ii), when valued at the fair market value (determined by the Borrower acting in good faithh) of each the definition of “Excluded Subsidiary” (provided that if any such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on Subsidiary becomes a Pro Forma Basis to the making Material Subsidiary as a result of such Investment, the Applicable Amount at Borrower shall comply, and cause such time plus (zSubsidiary to comply, with Section 9.10(a) the Applicable Equity Amount at such time and (iiib) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part and Section 9.16 of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Partiesthis Agreement, if applicable);
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments Permitted Acquisitions (to the extent otherwise constituting an Investment) and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless respect of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition royalty trusts and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Partiesmaster limited partnerships), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is madecase, in an aggregate amount pursuant to this clause (i) thatso long as, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis pro forma effect to the making of any such Investment, (1) no Default or Event of Default shall have occurred and be continuing, (2) the Borrower shall have Available Commitments of not less than 15% of the then effective Loan Limit (on a pro forma basis after giving effect to such Investment), and (3) as of the most recently ended fiscal quarter for which Section 9.1 Financials are available after giving pro forma effect to any such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal Consolidated Total Debt to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred Consolidated EBITDAX Ratio is not greater than 3.00 to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time1.00;
(ji) Investments constituting non-cash proceeds of Dispositions of assets to the extent such Disposition is permitted by Section 10.4;
(kj) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(lk) Investments consisting comprising purchases of dividends Permitted Additional Debt to the extent permitted under pursuant to Section 10.610.7;
(ml) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends Payments to the extent permitted to be made to such parent in accordance with Section 10.6;
(nm) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(on) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(po) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of business;
(qp) Guarantee Obligations guarantee obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(rq) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(sr) Investments in Hedge Agreements permitted by Section 10.1Industry Investments (to the extent otherwise constituting an Investment) and in interests in additional Oil and Gas Properties and gas gathering systems related thereto or Investments related to farm-out, farm-in, joint operating, joint venture, joint development or other area of mutual interest agreements, other similar industry investments, gathering systems, pipelines or other similar oil and gas exploration and production business arrangements whether through direct ownership or ownership through a joint venture or similar arrangement;
(s) [Reserved];
(t) Investments arising out of or in connection with any Permitted Receivables FinancingHedge Transactions permitted by Section 10.1 and Section 10.10;
(u) Investments in the ordinary course consisting of business in connection with Settlements;
Indebtedness, fundamental changes, Dispositions and Payments permitted under Sections 10.1, 10.3, 10.4 and 10.6 (v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3than 10.6(c)); and
(xv) Investments consisting of licensing of intellectual property pursuant to joint marketing arrangements with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.
Appears in 1 contract
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries to make any Investment except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were made;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Original Closing Date as set forth on Schedule 10.5 to the Original Credit Agreement and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant set forth on Schedule 10.5 to legally binding written commitments in existence on, the 2014 July Repricing Effective DateOriginal Credit Agreement;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Original Closing Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000750,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 750,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time);
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 600,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such timeAmount;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;; and
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.
Appears in 1 contract
Limitation on Investments. (a) [Reserved].
(b) The Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to make or maintain any Investment except:
(ai) extensions of trade credit and asset purchases of assets and services (including purchases of inventory, supplies and materials) in the ordinary course of business;
(bii) Investments in assets that were constituted Permitted Investments when at the time such Investments were made;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000[reserved];
(div) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Petition Date and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateset forth on Schedule 11.5;
(ev) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(fvi) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings[reserved];
(gvii) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties[reserved];
(hviii) Investments constituting Permitted Acquisitions[reserved];
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(jix) Investments constituting non-cash proceeds of Dispositions of assets to the extent such Disposition is permitted by Section 10.411.4;
(kx) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof)[reserved];
(lxi) Investments consisting of dividends permitted under Section 10.6[reserved];
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(nxii) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(oxiii) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(pxiv) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of businessbusiness and included in the Budget or, if not included in the Budget, in an aggregate amount to exceed $1,000,000;
(qxv) Guarantee Obligations guarantee obligations of the Borrower or any Restricted Subsidiary other Credit Party of leases (other than Capital Leases) or of other obligations of a Credit Party that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(rxvi) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation[reserved];
(sxvii) Investments in interests in additional Oil and Gas Properties or Investments related to farm-out, farm-in, joint operating, joint development or other area of mutual interest agreements, in each case in the ordinary course of business and included in the Budget;
(xviii) Investments in Hedge Agreements permitted by Section 10.111.1 and Section 11.10;
(txix) Investments arising out of or in connection with any Permitted Receivables Financing[reserved];
(uxx) to the extent in existence on the Petition Date, Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if by the Borrower shall be or any Subsidiary in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3Guarantor; and
(xxxi) Investments consisting of licensing of intellectual property pursuant to joint marketing arrangements with other Persons in the ordinary course of business;
. Notwithstanding anything to the contrary in this Section 11.5, any other provisions of this Agreement or any other Credit Document, (x) the Borrower will not permit any Non-Debtor Subsidiary, nor will any Non-Debtor Subsidiary be permitted, to make or maintain any Investment and (y) Investments constituting contributions the Borrower will not, nor will it permit any of its Subsidiaries to, make or other dispositions of maintain any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party Investment in any Restricted Non-Debtor Subsidiary that is not a Credit Party (other than, in an aggregate amount not the case of this clause (y), Investments in the Stock of such Non-Debtor Subsidiary as in existence on the Petition Date pursuant to exceed the fair market value clause (xx) of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Datethis Section 11.5).
Appears in 1 contract
Samples: Junior Secured Debtor in Possession Credit Agreement (California Resources Corp)
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to make any Investment except:
(a) extensions of trade credit and asset purchases of assets and services (including purchases of inventory, supplies and materials) in the ordinary course of business;
(b) Investments in assets that were constituted Permitted Investments when at the time such Investments were made;
(c) loans and advances to officers, directors directors, employees and employees consultants of the Borrower (or any direct or indirect parent thereof) or any of its Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash cash) and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,00020,000,000;
(di) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Closing Date as set forth on Schedule 10.5, (ii) Investments existing on the Closing Date of the Borrower or any Subsidiary in any other Subsidiary and (iii) any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (dd)(i) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateset forth on Schedule 10.5;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents (other than Disqualified Stock not otherwise permitted by Section 10.1) of Holdingsthe Borrower (or any direct or indirect parent thereof);
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Unrestricted Subsidiaries (provided that any no Event of Default shall then exist and, to the extent such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is made in the form of an intercompany loan a transfer of assets other than cash or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable)Permitted Investments, (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and Financial Performance Covenants on a pro forma basis after giving effect, on a Pro Forma Basis effect to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in covenants are recomputed as at the proceeds last day of the initial most recently ended Test Period as if such Investment being invested in one or more Credit Partieshad occurred on the first day of such Test Period);
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments Permitted Acquisitions and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless respect of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition royalty trusts and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Partiesmaster limited partnerships), in each case valued at the fair market value Fair Market Value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (iSection 10.5(h) that, at the time each such Investment is made, would not exceed the sum of (xA) the greater of (1) $1,000,000,000 when taken together with Investments outstanding at 125,000,000 and (2) 1.25% of Consolidated Total Assets (measured as of the date such time in reliance on Section 10.5(g)(ii)(xInvestment is made based upon the financial statements most recently available prior to such date) plus (yB) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Equity Amount at such time plus (zC) without duplication to the extent not otherwise included in the determination of any amount that increased the JV Distribution Applicable Equity Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value Fair Market Value of such Investment at the time such Investment was made); provided that the foregoing limits shall not apply during the period in which, and Investments may be made pursuant to this Section 10.5(h) plus without limit at any such time during which, after giving pro forma effect to the making of any such Investment, (aa1) no Event of Default shall have occurred and be continuing and (2) Liquidity is not less than 10% of the Applicable Equity Amount then effective Loan Limit (on a pro forma basis after giving effect to such Investment); provided, further, that intercompany current liabilities incurred in the ordinary course of business and consistent with past practices, in connection with the cash management operations of the Borrower and the Subsidiaries shall not be included in calculating any limitations in this paragraph at such any time;
(ji) Investments constituting non-cash proceeds of Dispositions of assets to the extent such Disposition is permitted by Section 10.4;
(kj) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(mk) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends Restricted Payments to the extent permitted to be made to such parent in accordance with Section 10.6;
(nl) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(om) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(pn) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of business;
(qo) Guarantee Obligations guarantee obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(rp) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(sq) Investments in Industry Investments and in interests in additional Oil and Gas Properties and gas gathering systems related thereto or Investments related to farm-out, farm-in, joint operating, joint venture, joint development or other area of mutual interest agreements, other similar industry investments, gathering systems, pipelines or other similar oil and gas exploration and production business arrangements whether through direct ownership or ownership through a joint venture or similar arrangement;
(r) Investments in Hedge Agreements permitted by Section 10.110.1 and Section 10.10;
(ts) Investments arising out consisting of or in connection with any Permitted Receivables Financing;
Indebtedness, fundamental changes, Dispositions and Restricted Payments permitted under Sections 10.1, 10.3, 10.4 and 10.6 (u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3than 10.6(c)); and
(xt) Investments consisting of licensing of intellectual property pursuant to joint marketing arrangements with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.
Appears in 1 contract
Limitation on Investments. The Borrower Company will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to make any Investment except:except the following (collectively, “Permitted Investments”):
(a) extensions of trade credit and credit, asset purchases (including purchases of inventory, supplies, materials and equipment) and the licensing or contribution of intellectual property pursuant to joint marketing arrangements, original equipment manufacturer arrangements or development agreements with other Persons, in each case in the ordinary course of business;
(b) Investments that were Permitted Investments in cash or Cash Equivalents when such Investments were made;
(c) loans and advances to officers, directors managers, directors, employees, consultants and employees independent contractors of the Borrower Company (or any direct or indirect parent thereof) or any Subsidiary of its Subsidiaries the Company (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower Avaya (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower Company in cash cash) and (iii) for purposes not described in the foregoing subclauses clauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause clause (iii) shall not exceed $10,000,00025,000,000 at any one time outstanding;
(d) Investments (i) contemplated by the Plan or to consummate the Transactions and (ii) existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Closing Date and, to the extent such Investments exceed $5,000,000, set forth on Schedule 10.5 of the Existing Credit Agreement and any extensionssupplement, renewals amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or reinvestments extension thereof, so long as only to the extent that the amount of any Investment made pursuant to this clause (dd)(ii) is does not increased at any time above exceed the amount of such Investment existing onset forth on Schedule 10.5 of the Existing Credit Agreement (except by an amount equal to the unpaid accrued interest and premium thereon, plus any unused commitments, plus amounts paid in respect of fees, premiums, costs and expenses incurred in connection with such supplement, amendment, amendment and restatement, modification, replacement, refinancing, refunding, restructuring, renewal or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateextension or as otherwise permitted hereunder);
(e) Investments received any Investment acquired by the Company or any Restricted Subsidiary (i) in exchange for any other Investment or accounts receivable held by the Company or any such Restricted Subsidiary in connection with the bankruptcy or reorganization as a result of suppliers a bankruptcy, workout, reorganization, or customers and in recapitalization of, or settlement of delinquent obligations ofaccounts or disputes with or judgments against, and other disputes withthe issuer, customers arising in obligor or borrower of such original Investment or accounts receivable, (ii) as a result of a foreclosure by the ordinary course of business Company or upon foreclosure any Restricted Subsidiary with respect to any secured Investment or other transfer of title with respect to any secured InvestmentInvestment in default or (iii) as a result of the settlement, compromise or resolution of litigation, arbitration or other disputes with Persons who are not Affiliates or in satisfaction or judgments against other Persons;
(f) Investments to the extent that payment for such Investments is made with (i) Stock or Stock Equivalents (other than Disqualified Stock) of Holdingsthe Company (or any direct or indirect parent thereof) or (ii) the proceeds from the issuance of Stock or Stock Equivalents (other than Disqualified Stock, any sale or issuance to any Subsidiary and any issuance applied pursuant to Section 5.06(a) or Section 5.06(b)(i)) of the Company (or any direct or indirect parent thereof); provided that such Stock or Stock Equivalents or proceeds of such Stock or Stock Equivalents will not increase the Available Equity Amount;
(g) Investments (i) (aother than in the form of direct or indirect transfers or Dispositions of intellectual property from a Credit Party to a non-Credit Party) by the Borrower Company or any Restricted Subsidiary in any Credit Party, (b) between the Company or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary or any Person that is not a Credit Partywill, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each upon such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on become a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit PartiesSubsidiary;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to constituting (i) minority Minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower Company acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount at any one time outstanding pursuant to this clause (i) that, at the time each such Investment is made, would not exceed an amount equal to the sum greater of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus 160,000,000 and (y) if 20% of Consolidated EBITDA for the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, most recently ended Test Period (calculated on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such timeBasis);
(j) Investments constituting non-cash proceeds of received from Dispositions of assets pursuant to the extent permitted by Section 10.45.04;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower Company or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower Company (or any direct or indirect parent thereof) in an aggregate amount, when combined with distributions made pursuant to Section 5.06(b), not to exceed the limitations set forth in such Section;
(l) Investments consisting of dividends or resulting from Indebtedness, Liens, Restricted Payments, fundamental changes and Dispositions permitted under by Section 10.65.01 (other than Sections 5.01(d), 5.01(e) and 5.01(g)(ii)), 5.02, 5.04 (other than in respect of Dispositions pursuant to clause (d) of “Asset Disposition”), Section 5.06 (other than Section 5.06(f)), 5.07, 5.08 or Article 11, as applicable;
(m) loans and advances to any direct or indirect parent of the Borrower Company in lieu of, and not in excess of the amount of, dividends Restricted Payments to the extent permitted to be made to such parent in accordance with Section 10.65.06; provided that the aggregate amount of such loans and advances shall reduce the ability of the Company and the Restricted Subsidiaries to make Restricted Payments under the applicable clauses of Section 5.06 by such amount;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of business;
(q) Guarantee Obligations of the Borrower Company or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger merger, amalgamation or consolidation) after the Original Closing Issue Date otherwise in accordance with this Section 10.5 5.05 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger merger, amalgamation or consolidation;
(s) Investments in Hedge Hedging Agreements permitted by Section 10.15.01;
(t) Investments in or by a Receivables Entity or a Securitization Subsidiary arising out of of, or in connection with with, any Permitted Receivables Financing or Qualified Securitization Financing, as applicable; provided that any such Investment in a Receivables Entity or a Securitization Subsidiary is in the form of a contribution of additional Receivables Facility Assets or Securitization Assets, as applicable, or as equity;
(u) Investments in the ordinary course consisting of business in connection with Settlementsdeposits of cash and Cash Equivalents as collateral support permitted under Section 5.02;
(v) other Investments, that, Investments not to exceed an amount equal to (x) the Available Equity Amount at the time each such Investment is Investments are made plus (y) the Available Amount at the time such Investments are made, provided that in respect of any Investments made in reliance of the definition of “Available Amount”, no Default or Event of Default shall have occurred and be continuing or would result therefrom, and the Company shall be in compliance on a Pro Forma Basis with a Consolidated Total Net Leverage Ratio not greater than 3.25 to 1.00;
(w) other Investments in an amount at any one time outstanding not to exceed an amount equal to the sum greater of (x) $750,000,000 plus 160,000,000 and (y) if 20% of Consolidated EBITDA for the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, most recently ended Test Period (calculated on a Pro Forma Basis, ); provided that up to an amount equal to $25,000,000 may be made in the making form of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such timeDisposition of intellectual property by a Credit Party to a Restricted Subsidiary that is not a Credit Party;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing purchases and acquisitions of intellectual property with other Persons assets and services in the ordinary course of business;
(y) Investments constituting contributions in the ordinary course of business consisting of Article 3 endorsements for collection or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; anddeposit and Article 4 customary trade arrangements with customers consistent with past practice;
(z) Investments made as a part of, or in connection with or to otherwise fund the Transactions;
(aa) contributions in connection with compensation arrangements to a “rabbi” trust for the benefit of employees, directors, partners, members, consultants, independent contractors or other service providers or other grantor trust subject to claims of creditors in the case of a bankruptcy of the Company or any of its Restricted Subsidiaries;
(bb) Investments relating to pension trusts;
(cc) Investments in Similar Business in an amount at any one time outstanding not to exceed an amount equal to the greater of (x) $160,000,000 and (y) 20% of Consolidated EBITDA for the most recently ended Test Period (calculated on a Pro Forma Basis);
(dd) Investments in connection with Permitted Reorganizations;
(ee) Investments in deposit accounts, commodities and securities accounts opened in the ordinary course of business;
(ff) Investments solely to the extent such Investments reflect an increase in the value of Investments otherwise permitted under this Indenture;
(gg) Investments in prepaid expenses, negotiable instruments held for collection and lease, utility and workers compensation, performance and similar deposits entered into as a result of the operations of the business in the ordinary course of business;
(hh) Term Loans repurchased by the Company or a Restricted Subsidiary pursuant to and in accordance with Section 13.6(g) of the Existing Credit Agreement;
(ii) other Investments in an unlimited amount, provided that the Company shall be in compliance on a Pro Forma Basis with a Consolidated Total Net Leverage Ratio not greater than 2.8 to 1.0; and
(jj) [reserved]. Notwithstanding the foregoing, no Investment consisting of or resulting from any transfer or other Disposition of any intellectual property by a Credit Party in any Restricted to a Subsidiary that is not a Credit Party may be made except pursuant to (i) Section 5.05(l) (solely in an respect of Dispositions permitted by clause (e) or (g) of “Asset Disposition”) or (ii) the proviso to Section 5.05(w). Notwithstanding the foregoing, (i) no Investment may be made in any Unrestricted Subsidiary pursuant to Section 5.05(i), (w) or (cc) on and after the Issue Date and (ii) the aggregate amount of Investments made in Unrestricted Subsidiaries on and after the Issue Date shall not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date$50,000,000.
Appears in 1 contract
Samples: Indenture (Avaya Holdings Corp.)
Limitation on Investments. The Borrower will notLoans and Advances. Make any advance, and will not permit loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of the Restricted Subsidiaries to or any assets constituting a business unit of, or make any Investment other investment in, any Person, except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madeinvestments in Cash Equivalents;
(c) Permitted Acquisitions;
(d) loans by the Borrower or any Subsidiary to Servicios in an aggregate principal amount at any time outstanding not to exceed the amount thereof outstanding on the date of this Agreement plus $5,000,000;
(e) as permitted by subsection 7.2(b)(iv);
(f) investments by the Borrower in a Domestic Wholly Owned Subsidiary and investments by any Subsidiary in the Borrower and in one or more Domestic Wholly Owned Subsidiaries;
(g) expense accounts for, and other expense advances to, its directors, officers and employees in the ordinary course of business;
(h) loans and advances to officersits officers and employees in an aggregate amount not to exceed $5,000,000 at any time outstanding;
(i) the Borrower's purchase or redemption of its own Capital Stock to the extent permitted by Section 7.7;
(j) current trade and customer accounts receivable that are for goods furnished or services rendered in the ordinary course of business and that are payable in accordance with Borrower's or any Subsidiary's customary trade terms;
(k) Interest Rate Protection Agreements to the extent permitted under this Agreement, directors and Hedge Agreements entered into in the ordinary course of business for hedging purposes and not for speculative purposes;
(l) the Borrower may repurchase its capital stock and/or options to purchase such stock held by directors, officers and employees of the Borrower (or any direct Subsidiary upon the death, disability, retirement or indirect parent thereof) termination of such directors, officers or any employees or the exercise of such options, or from the shareholders of Borrower so long as the purpose is to acquire stock for reissuance to new employees of Borrower and its Subsidiaries (i) for reasonable and customary business-related travelSubsidiaries; provided, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, that the amount of expended for such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,0001,000,000 in any fiscal year or $2,500,000 while this Agreement is in effect;
(dm) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date Borrower and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause its Subsidiaries may acquire and own investments (dincluding Indebtedness and other obligations) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(on) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of investments acquired by the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or and its Subsidiaries in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3Acquisitions; and
(xo) Investments consisting of licensing of intellectual property with other Persons the Borrower's current investment in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.Argent Classic Convertible Arbitrage Fund L.P.
Appears in 1 contract
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to (i) purchase or acquire (including pursuant to any merger, consolidation or amalgamation with a person that is not a Wholly owned Subsidiary immediately prior to such merger, consolidation or amalgamation) any Equity Interests, evidences of Indebtedness or other securities of any other Person, (ii) make any Investment loans or advances to or guarantees of the Indebtedness of any other Person, or (iii) purchase or otherwise acquire (in one transaction or a series of related transactions) (x) all or substantially all of the property and assets or business of another Person or (y) assets constituting a business unit, line of business or division of such Person (each, an “Investment”), except:
(a) extensions of trade credit and asset purchases of assets and services (including purchases of inventory, supplies and materials) in the ordinary course of business;
(b) Investments in assets that were constituted Permitted Investments when at the time such Investments were made;
(c) loans and advances to officers, directors directors, employees and employees consultants of the Borrower (or any direct or indirect parent thereof) or any of its Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), ) and (ii) in connection with such Person’s purchase of Stock or Stock Equivalents Equity Interests of the Borrower (or any direct or indirect parent thereof)Borrower; provided that, (i) to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents Equity Interests shall be contributed to the Borrower in cash and (iiiii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause clause (iiic) shall not exceed $10,000,0005,000,000;
(di) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Closing Date as set forth on Schedule 10.5(d), (ii) Investments existing on the Closing Date of the Borrower or any Subsidiary in any other Subsidiary and (iii) any extensions, modifications, replacements, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made as of the Closing Date (other than (a) pursuant to legally binding written commitments an increase as required by the terms of any such Investment as in existence on, on the 2014 July Repricing Effective DateClosing Date or (b) as otherwise permitted under this Section 10.5);
(e) Investments received any Investment acquired by the Borrower or any of its Restricted Subsidiaries: (i) in exchange for any other Investment, accounts receivable or endorsements for collection or deposit held by the Borrower or any such Restricted Subsidiary in each case in connection with the bankruptcy or as a result of a bankruptcy, workout, reorganization of suppliers or customers and in recapitalization of, or settlement of delinquent obligations ofaccounts and disputes with or judgments against, and the issuer of such other disputes withInvestment or accounts receivable (including any trade creditor or customer), customers arising (ii) in satisfaction of judgments against other Persons, (iii) as a result of a foreclosure by the ordinary course Borrower or any of business or upon foreclosure its Restricted Subsidiaries with respect to any secured Investment or other transfer of title with respect to any secured InvestmentInvestment in default or (iv) as a result of the settlement, compromise or resolution of litigation, arbitration or other disputes with Persons who are not Affiliates;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents Qualified Equity Interests of Holdingsthe Borrower;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between Guarantor or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred by any Guarantor in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable)Borrower, (ii) by Credit Parties any Grantor in the Borrower or any Restricted Subsidiary other Grantor; provided, that is not a Credit Party, Investments by any Grantor in the Borrower or any Guarantor shall be subordinated in right of payment to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii)Loans, when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties one EHP Entity in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit PartiesEHP Entity other than EHP Topco;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued made at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at any such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Testduring which, both before and immediately after giving effect, on a Pro Forma Basis effect to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed on a pro forma basis, the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such timeRestricted Payment Conditions are satisfied;
(j) Investments constituting promissory notes and other non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.410.4 or any other disposition of assets not constituting a Disposition;
(k) Investments made to repurchase or retire Stock or Stock Equivalents consisting of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower Restricted Payments permitted under Section 10.6 (or any direct or indirect parent thereofother than Section 10.6(c));
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(om) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practicespractices or industry practice;
(pn) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case of the Borrower or any Restricted Subsidiary and in the ordinary course of business;
(qo) Guarantee Obligations guarantee obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Capitalized Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(rp) Investments held by a Person acquired (including by way of merger merger, amalgamation or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger merger, amalgamation or consolidation and were in existence on the date of such acquisition, merger merger, amalgamation or consolidation;
(q) Investments in Industry Investments;
(r) to the extent constituting Investments, the Transactions;
(s) Investments in Hedge Agreements permitted by each of Section 10.110.1 and Section 10.10;
(t) Investments arising out consisting of or in connection with any Permitted Receivables Financingfundamental changes and Dispositions permitted under Sections 10.3 (other than Sections 10.3(a), (c) and (g)) and 10.4 (other than Section 10.4(d));
(u) in the case of the Borrower and the Grantors, Investments consisting of intercompany Indebtedness having a term not exceeding 364 days (inclusive of any roll over or extension of terms) and made in the ordinary course of business business; provided that, in connection with Settlementsthe case of any such Indebtedness owing by the Borrower or a Grantor to a Grantor that is not a Guarantor, such Indebtedness shall be subordinated to the Obligations pursuant to the Intercompany Note; provided, further, that in the case of any such Indebtedness owing by a Grantor that is not a Guarantor to the Borrower or a Guarantor, (i) such Indebtedness shall be evidenced by the Intercompany Note pledged in favor of the Collateral Agent for the benefit of the Secured Parties pursuant to the Collateral Agreement and (ii) the aggregate amount of all such Indebtedness owing by a Grantor that is not a Guarantor to the Borrower or a Guarantor pursuant to this Section 10.5(u) shall not to exceed the greater of (A) $10,000,000 and (B) 2.0% of the Borrowing Base at the time such Indebtedness is incurred;
(v) other InvestmentsInvestments resulting from pledges and deposits under clauses (d) and (e) of the definition of “Permitted Liens” and clauses (i), that, at the time each such Investment is made, would not exceed the sum (p) and (v) of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such timeSection 10.2;
(w) Investments advances in connection the form of a prepayment of expenses, so long as such expenses are being paid in accordance with any transaction permitted by Section 10.3; andcustomary trade terms of the Borrower or the relevant Restricted Subsidiary;
(x) Investments consisting of licensing of intellectual property pursuant to joint marketing arrangements with other Persons in the ordinary course of business;
(y) Investments constituting contributions made in the ordinary course of business in connection with obtaining, maintaining or other dispositions renewing client contacts and loans or advances made to distributors in the ordinary course of any Foreign Subsidiary to another Foreign Subsidiary; andbusiness;
(z) cash Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in Excluded Subsidiaries having an aggregate amount fair market value, taken together with all other Investments made pursuant to this Section 10.5(z) that are at the time outstanding, without giving effect to the sale of an Excluded Subsidiary to the extent the proceeds of such sale do not consist of marketable securities (until such proceeds are converted to cash equivalents) not to exceed the greater of (i) $10,000,000 and (ii) 2.0% of the Borrowing Base at the time of such Investment (with the fair market value of all dividends each Investment being measured at the time made and other distributions received by Credit Parties from without giving effect to subsequent changes in value), so long as immediately after giving effect to the making of any such Investment on a pro forma basis, the Restricted Payment Conditions are satisfied;
(aa) Investments in Unrestricted Subsidiaries consisting of (i) undeveloped acreage to which no Proved Reserves are attributable or (ii) assets that are not Credit Parties since Borrowing Base Properties and other assets not included in the Initial Effectiveness DateBorrowing Base, in each case, in relation to Farm-In Agreements, Farm-Out Agreements, joint operating, joint venture, joint development activities or other similar oil and gas exploration and production business arrangement; provided that immediately after giving effect to the making of any such Investment made in cash on a pro forma basis, the Restricted Payment Conditions are satisfied;
(bb) any Investment constituting a Disposition or transfer of any asset between or among the Borrower and/or its Restricted Subsidiaries as a substantially concurrent interim Disposition or transfer in connection with an Investment otherwise permitted pursuant to clauses (a) through (aa) above or in connection with a transaction permitted by Section 10.3 or in connection with a Disposition permitted pursuant to Section 10.4; and
(cc) [reserved].
Appears in 1 contract
Limitation on Investments. The Borrower will shall not, and will shall not permit any of the Restricted its Subsidiaries to make any Investment in any Person, except:,
(a) extensions of trade credit Investments in existence on the date hereof and asset purchases described in the ordinary course of businessSchedule 6.8(a);
(b) Investments that were Permitted Investments when held by the Borrower or such Investments were madeSubsidiary in the form of Cash Equivalents;
(c) loans and advances to officers, directors and employees Investments of the Borrower in any Subsidiary of the Borrower (other than any Non-Recourse Subsidiary) and Investments of any Subsidiary of the Borrower in the Borrower or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents another Subsidiary of the Borrower (or other than any direct or indirect parent thereofNon-Recourse Subsidiary); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(e) Investments of the Borrower in GyM Ferrovias relating to the Reference Ferrovias Project; provided, that (x) no Default or Event of Default shall have occurred and other credits be continuing or would occur after giving effect on a pro forma basis to suppliers the making of such Investments and (y) the aggregate amount of such Investments do not exceed, at any time, individually or in the aggregate, U.S.$70,000,000;
(f) so long as no Default shall have occurred and be continuing at the time of such Investment, Investments of the Borrower or of any Subsidiary of the Borrower in any Non-Recourse Subsidiary or in any Person, made in the ordinary course of business, not exceeding, individually or in the aggregate, U.S.$20,000,000 (or the Dollar Equivalent thereof), during any fiscal year of the Borrower;
(og) Investments in the Concessionaire in the form of (i) the Base Equity Contribution and (ii) to the extent permitted by Sections 6.6(a)(iii) and (iv), the Bridge Loan Letter of Credit or the Contingent Equity Letter of Credit or Guarantees of Indebtedness Incurred under the Bridge Loan; and
(h) to the extent not permitted under clauses (a) through (g) above, Investments by any Subsidiary of the Borrower made in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
practice (p1) advances of payroll payments in consorcios or asociaciones en participación to employees which such Subsidiary is a party, and (2) in the ordinary course form of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into equity contributions to Persons engaged in the ordinary course construction, development or acquisition of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 real estate projects, but only to the extent that such Investments were not made are necessary in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date reasonable judgment of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in Subsidiary for the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Datedevelopment and/or completion thereof.
Appears in 1 contract
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries its Subsidiaries, to make any Investment except:
(a) extensions of trade credit and asset purchases of assets and services (including purchases of inventory, supplies and materials) in the ordinary course of business;
(b) Investments in assets that were constituted Permitted Investments when at the time such Investments were made;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Closing Date as set forth on Schedule 10.5, and any extensions, renewals or reinvestments thereof, so long as the amount of any such Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment set forth on Schedule 10.5 (if applicable), and (ii) Investments existing on, on and made prior to the Closing Date of the Borrower or made pursuant to legally binding written commitments any Subsidiary in existence on, the 2014 July Repricing Effective Dateany other Subsidiary;
(ed) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(fe) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents (other than Disqualified Stock not otherwise permitted by Section 10.1) of Holdingsthe Borrower (or any direct or indirect parent thereof);
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(jf) Investments constituting non-cash proceeds of Dispositions of assets to the extent such Disposition is permitted by Section 10.4;
(kg) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(mh) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends Restricted Payments to the extent permitted to be made to such parent in accordance with Section 10.6;
(ni) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(oj) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(pk) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of business;
(ql) Guarantee Obligations guarantee obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(rm) Investments held by in Industry Investments and in interests in additional Oil and Gas Properties, Carbon Dioxide Interests or other material properties and gas gathering systems related thereto or Investments related to farm-out, farm-in, joint operating, joint venture, joint development or other area of mutual interest agreements, other similar industry investments, gathering systems, pipelines or other similar oil and gas exploration and production business arrangements or enhanced oil recovery business arrangements, whether through direct ownership or ownership through a Person acquired (including by way of merger joint venture or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent similar arrangement; provided that any such Investments were made pursuant this clause (m) do not made exceed $15,000,000 in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidationaggregate;
(sn) Investments in Hedge Agreements permitted by Section 10.110.10;
(to) Investments arising out consisting of or in connection with any Permitted Receivables FinancingIndebtedness, fundamental changes, Dispositions and Restricted Payments permitted under Sections 10.1, 10.3, 10.4 and 10.6 (other than 10.6(c));
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(xp) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(yq) Investments constituting contributions (i) by the Borrower in any Guarantor or by any Guarantor in the Borrower and (ii) by any Subsidiary that is not a Guarantor in the Borrower or any other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(zr) other Investments by that do not exceed $5,000,000 in the aggregate at any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Datetime.
Appears in 1 contract
Samples: Senior Secured Super Priority Debtor in Possession Credit Agreement (Denbury Resources Inc)
Limitation on Investments. The Borrower will not, and nor will not it permit any of the Restricted Subsidiaries to to, make any advance, loan, extensions of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets of, or make any other Investment in, any Person, except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madeInvestments;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, ) to the extent such loans and advances are made in cash, that the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be are contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses clauses (i) and (ii); provided that the , in an aggregate principal amount outstanding pursuant not to this subclause (iii) shall not exceed $10,000,0005,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence oncontemplated as of, the 2014 July Repricing Effective Closing Date and listed on Schedule 10.5 and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of any Investment made all Investments pursuant to this clause (d) is not increased at any time above the amount of such Investment Investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Closing Date;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investmentbusiness;
(f) Investments to the extent that payment for such Investments is made solely with Stock or Stock Equivalents of Holdingsthe Borrower;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit PartySubsidiary Guarantor or the Borrower, (bii) between or among in Restricted Subsidiaries that are not Credit PartiesSubsidiary Guarantors, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect an aggregate amount pursuant to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), this clause (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) 7,500,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time time, and (iii) by Credit Parties in any Restricted Subsidiaries that are not Subsidiary that is not a Credit Party Guarantors so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit PartiesSubsidiary Guarantors;
(h) Investments constituting Permitted Acquisitions;
(i) (i) Investments (including but not limited to (i) minority Investments in Minority Investments and Investments in Unrestricted Subsidiaries, ) and (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons entities that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case case, as valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, (A) in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (zy) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus and/or (aaB) in the case of clause (ii) only, in any amount that, at the time such Investment is made, would be permitted to be expended as a Capital Expenditure under Section 10.11, to the extent that (x) such joint venture owns an interest in assets the addition of which would have been a Capital Expenditure if acquired or constructed, and owned, directly by the Borrower or a Restricted Subsidiary, and (y) the Applicable Equity Amount at ability of the Borrower and/or one or more Restricted Subsidiaries to receive cash flows attributable to its interest therein substantially as they would if they directly owned such timeasset or portion thereof is not prohibited by contract, applicable law or otherwise;
(j) Investments constituting non-cash proceeds of Dispositions sales, transfers and other dispositions of assets to the extent permitted by Section 10.410.4(b) or (c);
(k) Investments made to repurchase or retire Stock or and Stock Equivalents of the Borrower or any direct or indirect parent thereof owned issued under by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);Borrower; and
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date10.6.
Appears in 1 contract
Limitation on Investments. The Borrower Neither the Company nor any Restricted Subsidiary will not, and will not permit any of the Restricted Subsidiaries to make any Investment Investments, except:
(a) extensions of trade credit and asset purchases other payables in the ordinary course of business and extensions of non-material advances for Improvements to property not then owned by the Company in the ordinary course of business provided that the Company shall give notice to the Lenders of any such non-material advances aggregating in excess of $20,000,000 in any fiscal quarter;
(b) Investments in Cash Equivalents;
(c) acquisitions by the Company or any of its Restricted Subsidiaries within the Homebuilding Segment of assets constituting a business unit or the capital stock of any Person, provided that such business unit or Person is engaged in the same general type of business as conducted by the Company or one of its Restricted Subsidiaries and provided, further, that before any such acquisition and after giving effect thereto, no Default or Event of Default shall be in existence and the Company shall, at its sole expense, have delivered to the Administrative Agent not less than 10 days prior to the date of such acquisition a certificate to such effect, in form and substance satisfactory to the Administrative Agent, signed by a Responsible Official;
(d) acquisitions by the Company or any of its Restricted Subsidiaries other than acquisitions permitted under clauses (c) or (h) of this Section 7.13 of, or investments in, assets constituting a business unit or the capital stock of any Person; provided, that the aggregate amount of consideration paid by the Company and its Restricted Subsidiaries for all such acquisitions of assets or capital stock (including as a part of such consideration any Indebtedness assumed as a part thereof) does not exceed an aggregate amount equal to $25,000,000; and provided, further, that after giving effect thereto, no Default or Event of Default shall be in existence;
(e) Investments by the Company or any of its Subsidiaries within the Homebuilding Segment in joint ventures in an aggregate amount for all such Investments not exceeding at any date an amount equal to the greater of
(1) 20% of the Company’s Consolidated Tangible Net Worth less the aggregate amount of Investments (if any) by the Company or any of its Subsidiaries within the Homebuilding Segment in joint ventures which are in default in the payment of principal of or interest on non-recourse Indebtedness or in the observance or performance of any other agreement or condition relating to such non-recourse Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, the effect of which default in observance or performance is to cause, or permit the holder or holders of such non-recourse Indebtedness to cause, with the giving of notice if required, such non-recourse Indebtedness to become due prior to its stated maturity, or
(2) $75,000,000;
(f) Investments by the Company in any Subsidiary within the Homebuilding Segment or by any Subsidiary within the Homebuilding Segment in the Company or in any other Subsidiary within the Homebuilding Segment;
(g) Investments by the Company or any other entity within the Homebuilding Segment in the Financial Services Segment, so long as the aggregate amount of such Investments shall not at any time exceed the greater of:
(1) $50,000,000; or
(2) 10% of Consolidated Tangible Net Worth; provided, that the limits set forth above will not apply following termination of the Countrywide Loan Purchase Agreement (or any successor agreement thereto) until the first to occur of:
(A) 90 days following the date such termination becomes effective; or
(B) the date upon which Ryland Mortgage Company enters into a successor agreement;
(h) Investments by entities within the Financial Services Segment in any Person and acquisitions of assets constituting a business unit or the capital stock of any Person by entities within the Financial Services Segment;
(i) loans and advances to employees of the Company or its Subsidiaries for travel, entertainment and relocation expenses in the ordinary course of business;; and
(bj) Investments that were Permitted Investments when such Investments were made;
(c) other loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) Company in connection with such Person’s incentive or stock purchase of Stock plans or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date$3,000,000 at any time outstanding.
Appears in 1 contract
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries to make any Investment except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were any Investment in cash and Permitted Investments when such Investments were madeInvestments;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries or to Physicians with whom the Borrower or any of its Subsidiaries have contractual relationships (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advancesadvances and recruitment costs), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to ) so long as any proceeds from the extent such loans and advances are made in cash, the amount sale of such loans and advances used to acquire such Stock or Stock Equivalents shall be are contributed to the equity of Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the , in an aggregate principal amount at any time outstanding pursuant to this subclause (iii) shall not to exceed $10,000,00030,000,000;
(d) Investments (i) existing onon or prior to Xxxxx 00, or made pursuant to legally binding written commitments in existence on0000, (xx) existing on the 2014 July Repricing Fourth Restatement Effective Date and set forth on Schedule 10.5 and (iii) contemplated as of the Fourth Restatement Effective Date and set forth on Schedule 10.5 and, in each case, any extensions, modifications, renewals or reinvestments thereof, thereof so long as the aggregate amount of any Investment made all Investments pursuant to this clause (d) is not increased at any time above the amount of such Investments existing on the Fourth Restatement Effective Date other than (1) as required by the terms of such Investment existing on, or made pursuant to legally a binding written commitments commitment as in existence on, on the 2014 July Repricing Fourth Restatement Effective DateDate (including as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities) and premium payable by the terms of such Investment or a binding commitment thereon and fees and expenses associated therewith as of the Fourth Restatement Effective Date or (2) as otherwise permitted by another provision of this Section 10.5;
(e) Investments received (i) in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business and suppliers or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment; (ii) in exchange for any other Investment or accounts receivable held by the Borrower or any such Restricted Subsidiary in connection with or as a result of a bankruptcy, workout, reorganization or recapitalization of the issuer of such other Investment or accounts receivable (including any trade creditor or customer) and (iii) in satisfaction of judgments against other Persons;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) [reserved], (c) between or among 1993 Indenture Restricted Subsidiaries, (d) between or among Restricted Subsidiaries that are not neither Credit PartiesParties nor 1993 Indenture Restricted Subsidiaries, and (ce) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries and (provided that any such intercompany Investment in connection with cash management arrangements f) by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such any Restricted Subsidiary complies with Section 9.12 in any Restricted Subsidiary; provided that such Investment is used, directly or as a result of substantially concurrent transfers, to the extent applicable), repay intercompany Indebtedness owed to any Credit Party and (ii) (a) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent (b) by 1993 Indenture Restricted Subsidiaries in any Restricted Subsidiary that the aggregate amount of all Investments made on is not a 1993 Indenture Restricted Subsidiary or after the 2014 July Repricing Effective Date pursuant to this subclause (ii)c) by any Restricted Subsidiary that is neither a Credit Party nor a 1993 Indenture Restricted Subsidiary in any 1993 Indenture Restricted Subsidiary, when in each case valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, from and after the Second Restatement Effective Date, in an aggregate amount pursuant to this subclause (ii) that, at the time each such Investment is made, would not exceed the sum of at any time outstanding (x) the excess of (A) the greater of (I) $1,000,000,000, when taken together with 4,500,000,000 and (II) 15% of Consolidated Total Assets over (B) the amount of Investments outstanding at such time in reliance on Section 10.5(i)(x10.5(i)(ii)(x) at such time plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Partiestime;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, Subsidiaries and (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) from and after the Second Restatement Effective Date that, at the time each such Investment is made, would not exceed the sum at any time outstanding of (x) the excess of (A) the greater of (I) $1,000,000,000 when taken together with 4,500,000,000 and (II) 15% of Consolidated Total Assets over (B) the amount of Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) at such time, plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time);
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted not prohibited by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any employee stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted not prohibited to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments by 1993 Indenture Restricted Subsidiaries of accounts receivable and related assets in Hedge Agreements permitted by Section 10.1ABL Entities;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments made in reliance on Section 10.5(g)(ii) or Section 10.5(i) (in each case, of the ordinary course of business in connection with SettlementsFirst Restated Credit Agreement) prior to the Fourth Restatement Effective Date or committed to be made prior to the Fourth Restatement Effective Date;
(v) other Investments, that, Investments by the Borrower and the Restricted Subsidiaries in any joint venture (regardless of the form of legal entity) or Restricted Subsidiary in an aggregate amount at the any time each such Investment is made, would outstanding not to exceed the sum of (xA) $750,000,000 600,000,000 plus (yB) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable JV Distribution Amount plus (zC) without duplication of any amount that increased the Applicable Equity Amount JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (C) shall not exceed the amount of such Investment valued at the fair market value of such timeInvestment at the time such Investment was made); provided, that the aggregate amount of Investments made in reliance on subclause (B) or (C) above by the Credit Parties shall not exceed the aggregate of the amounts referred to in such subclauses that were directly or indirectly received by Credit Parties;
(w) Investments in connection with any transaction permitted redemption by Section 10.3; andHealthtrust, or transfer to Healthtrust or the Borrower, of shares of Stock of Healthtrust held by Columbia—SDH and Epic Properties;
(x) Investments consisting intercompany transfers of licensing creditor positions (i) in respect of intellectual property with Indebtedness outstanding pursuant to Sections 10.1(a), 10.1(g)(ii) or 10.1(i), and (ii) in respect of any other Persons intercompany Indebtedness; provided that the transfer of credit positions described in the ordinary course this clause (ii) is used, directly or as a result of businesssubstantially concurrent transfers, to repay intercompany Indebtedness owed to any Credit Party;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary Indebtedness outstanding pursuant to another Foreign Subsidiary; andSection 10.1(a)(z);
(z) Investments by in connection with Permitted Intercompany Activities and any Credit Party in any Restricted Subsidiary that Permitted Tax Restructuring; and
(aa) other Investments so long as the Consolidated Total Debt to Consolidated EBITDA Ratio for the most recently ended Test Period for which Section 9.1 Financials have been delivered is not less than or equal to 4.25:1.00, determined on a Credit Party in an aggregate amount not Pro Forma Basis after giving effect to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Datesuch Investment.
Appears in 1 contract
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries to make Make any Investment exceptexcept for:
(a) extensions of trade credit and credit, asset purchases in (including purchases of inventory, supplies and materials), the ordinary course licensing of businessintellectual property and contribution of intellectual property pursuant to joint marketing arrangements with other Persons;
(b) Investments that were Permitted Investments when such Investments were madeCash Equivalents;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s to finance the purchase of Capital Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, that the amount of such loans and advances used to acquire such Capital Stock or Stock Equivalents shall be contributed to the Borrower in cash as common equity), (ii) for reasonable and customary business related travel expenses, moving expenses and similar expenses, and (iii) for additional purposes not described in the foregoing subclauses contemplated by subclause (i) and or (ii); provided that the ) above in an aggregate principal amount at any time outstanding pursuant with respect to this subclause clause (iii) shall not exceed exceeding $10,000,0005,000,000 in any fiscal year (with unused amounts in any such period being carried-forward to any succeeding fiscal year);
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Closing Date and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of any Investment made all Investments pursuant to this clause (d) is not increased at any time above the amount of such Investment Investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Closing Date;
(e) Investments in Hedging Obligations to the extent not prohibited by Section 6.01;
(f) Investments received in connection with the bankruptcy or reorganization of trade creditors, trade counterparties, suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investmentcustomers;
(fg) Investments to the extent that payment for such Investments is made with Capital Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit PartiesBorrower;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiariesany Restricted Subsidiary, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case as valued at the fair market value (determined by the Borrower acting in good faith) Fair Market Value of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time such Investment is made, would not exceed the Retained Prepayment Amount at such time;
(i) Investments (including in the form of loans) in the Borrower or any Subsidiary Guarantor;
(j) Investments constituting Permitted Acquisitions;
(k) Investments made to repurchase or retire common stock of the Borrower owned by any employee stock ownership plan or key employee, directors and officers, or other stock ownership plans of the Borrower;
(l) (i) additional Investments (including Investments in Excluded Subsidiaries, Minority Investments and Unrestricted Subsidiaries) and (ii) Investments in joint ventures or similar entities that do not constitute Restricted Subsidiaries, in each case as valued at the Fair Market Value of such Investment at the time each such Investment is made,
(A) (1) to the extent such Investments exist on the Third Restatement Date and were made pursuant to Section 6.05(l)(A) or 6.05(l)(B) of the Second Restated Credit Agreement prior to the Third Restatement Date (and so reduced the Available Amount at the time made) plus (2) additional Investments on or after the Third Restatement Date in an aggregate amount that, at the time such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) 500,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Available Amount at such time plus (z) without duplication of any amount that increased to the JV Distribution extent such amounts do not increase the Available Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value Fair Market Value of such Investment at the time such Investment was made) plus an amount equal to any letters of credit, guarantees and other contingent credit support that constitute Investments that were made pursuant to this clause (aal) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase such letters of credit, guarantees or retire Stock other contingent credit support are cancelled, expire or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends are otherwise terminated except to the extent permitted to be made to such parent in accordance with Section 10.6;of any payment being required thereon, and/or
(nB) Investments consisting of extensions of credit in the nature case of accounts receivable or notes receivable arising from the grant of trade credit Investments described in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
clause (ol)(ii) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of above only that are made by the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtednessany Excluded Subsidiary), in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, an aggregate amount that, at the time each such Investment is made, would be permitted to be expended as a Capital Expenditure under Section 6.12, to the extent that (x) the applicable joint venture owns an interest in assets the addition of which would have been a Capital Expenditure if acquired or constructed, and owned, directly by the Borrower or a Restricted Subsidiary (other than any Excluded Subsidiary) and (y) the ability of the Borrower and/or one or more Restricted Subsidiaries to receive cash flows attributable to its interest therein at the time of determination are not prohibited by contract, Applicable Law or otherwise; provided, however, that the face amount of any Letters of Credit and letters of credit under Cash Collateralized Letter of Credit Facilities issued for the benefit of a Subsidiary of the Borrower that (x) is not a Subsidiary Guarantor or (y) is a Minority Investment (whether constituting an Investment or not) shall, only for as long as such Letter of Credit or letter of credit, as applicable, is outstanding (to the extent of such outstanding amount), reduce the amount of Investments permitted to be made under this Section 6.05(l) by an amount equal to the face amount of such Letters of Credit and letters of credit.
(m) additional Investments in any Minority Investment or any Excluded Subsidiary by another Excluded Subsidiary, other than any such Investments made with the proceeds of Non-Recourse Indebtedness; provided, however, that (i) Investments in an Excluded Subsidiary or Minority Investment with the proceeds of Non-Recourse Indebtedness by another Excluded Subsidiary that is a direct or indirect parent of such Excluded Subsidiary or Minority Investment shall be permitted and (ii) Investments in an Excluded Subsidiary or Minority Investment with the proceeds of Non-Recourse Indebtedness by another Excluded Subsidiary that is formed solely for the purposes of incurring such Non-Recourse Indebtedness, that has no other assets other than de minimis assets and that has the same direct parent as such Excluded Subsidiary or Minority Investment shall be permitted;
(n) the Acquisition Transactions;
(o) the contribution of any one or more of the Specified Facilities to a Restricted Subsidiary that is not a Loan Party;
(p) Investments that are received in consideration of the contribution by the Borrower or a Restricted Subsidiary of assets (other than cash, Cash Equivalents or Core Collateral), valued at the Fair Market Value of such Investment at the time such Investment is made, in an aggregate amount that, at the time such Investment is made, would not exceed the Fair Market Value of the sum of (xi) $750,000,000 plus to the extent such amounts do not increase the Available Amount, all Capital Stock of the Borrower, paid as consideration in connection with a Permitted Acquisition (yvalued at the time of consummation of such Permitted Acquisition) if consummated after the Closing Date and on or prior to the date of such Investment so long as all Equity Interests and other assets that were acquired by the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on or a Pro Forma Basis, Restricted Subsidiary through such Permitted Acquisition have been pledged to the making Collateral Agent to the extent required under Section 5.09 (provided that such acquired assets shall not be Excluded Assets pursuant to clauses (viii) or (xiii) of the definition thereof) and (ii) to the extent such amounts do not increase the Available Amount, all assets that (A) were distributed, without consideration (other than nominal consideration to the extent required under applicable law), by an Excluded Subsidiary (other than the Funded L/C SPV) or Minority Investment to the Borrower or a Subsidiary Guarantor after the Closing Date (valued at the time of such Investment, distribution) or (B) were owned at the Applicable Amount plus time by an Excluded Subsidiary or Unrestricted Subsidiary that became a Subsidiary Guarantor after the Closing Date and that have been pledged to the Collateral Agent to the extent required by Section 5.09 (zvalued at the time of such guarantee); provided that any amounts specified to in clauses (i) and (ii) above shall not be used to increase any amounts set forth in the Applicable Equity Amount at other clauses of this Section 6.05 (it being understood that any amounts specified in clauses (i) and (ii) above may be combined with amounts set forth in other clauses of this Section 6.05 to the extent such timecombination does not result in duplication);
(wq) (i) Investments in connection with any transaction permitted by under Section 10.3; and6.06 and (ii) Guarantees permitted under Section 6.01 (including the Funded L/C SPV Guarantee);
(xr) Investments consisting of licensing of intellectual property with Seller’s Retained Interests in a South Central Securitization permitted by Section 6.04 and any servicing fees and other Persons in similar rights related to the ordinary course of businessSouth Central Securitization permitted by Section 6.04;
(ys) Investments constituting contributions pursuant to transactions described Section 6.08(b)(xix);
(t) the acquisition or other dispositions ownership by the Borrower or any Subsidiary of any Foreign Subsidiary interest in STP Nuclear Operating Company and/or any nuclear insurance mutual, association, fund or syndicate (including American Nuclear Insurers and/or Nuclear Electric Insurance Limited) relating to another Foreign any nuclear Facility of the Borrower or such Subsidiary; and
(zu) (i) the Funded L/C SPV Equity Contribution, (ii) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party the Funded L/C SPV in an aggregate amount not to exceed the fair market value of all dividends any fees (including fronting, issuance, amendment and other distributions similar fees), interest, costs and expenses incurred from time to time by the Funded L/C SPV under Cash Collateralized Letter of Credit Facilities, (iii) so long as no Default or Event of Default exists or would exist after giving effect thereto, Investments in the Funded L/C SPV in an amount equal to any amounts actually received in cash in respect of the Investment resulting from the Funded L/C SPV Equity Contribution by the Borrower or any Subsidiary Guarantor from the Funded L/C SPV and (iv) Investments constituting an actual or contingent reimbursement obligation of the Borrower or any of its Subsidiaries to the Funded L/C SPV with respect to any amounts drawn on letters of credit issued for the benefit of the Borrower, any of its Subsidiaries or any Minority Investments under Cash Collateralized Letter of Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness DateFacilities.
Appears in 1 contract
Samples: Credit Agreement (NRG Energy, Inc.)
Limitation on Investments. The Borrower will not, and the Borrower will not permit any of the its Restricted Subsidiaries to to, make any Investment except:
: (a) extensions of trade credit and asset purchases in the ordinary course of business;
; (b) Investments that were Permitted Investments when such Investments were made;
; (c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash cash) and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
; (d) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date Closing Date, as set forth on Schedule 10.5 and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date;
set forth on Schedule 10.5; -132- (e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
; (f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by Holdings or of the Borrower or any Restricted Subsidiary in any Credit Partyor, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course case of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any a Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Non-Domestic Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.g)
Appears in 1 contract
Samples: Credit Agreement
Limitation on Investments. The Borrower Each Loan Party will not, and will not permit any of the Restricted Subsidiaries to to, make any advance, loan, extensions of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting all or substantially all or a division or line of business of, or make any other Investment in, any Person, except:
(a) extensions of trade credit and asset purchases in the ordinary course Ordinary Course of businessBusiness;
(b) Investments that were Permitted Investments when such Investments were madeInvestments;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) Loan Party or any of its Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, MRC Global to the extent such loans and advances are made in cash, that the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be are contributed to the Borrower MRC Global in cash and (iii) for purposes not described in the foregoing subclauses clauses (i) and (ii); provided that the , in an aggregate principal amount outstanding pursuant not to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence oncontemplated as of, the 2014 July Repricing Effective Date date hereof and listed on Schedule 10.2.5, intercompany Investments existing on the date hereof and any extensions, renewals or reinvestments thereof, so long as the aggregate amount of any Investment made all Investments pursuant to this clause (d) is not increased at any time above the amount of such Investment Investments existing on, or made pursuant to legally binding written commitments in existence on, on the 2014 July Repricing Effective Datedate hereof;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course Ordinary Course of business Business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made solely with Stock or Stock Equivalents of HoldingsMRC Global;
(g) Investments (other than Acquisitions) in (i) U.S. Domiciled Loan Parties and (ii) any other Persons provided that after giving effect to any such Investment on the date such Investment is made under this clause (g)(ii), either (A) both (1) Excess Availability is greater than the higher of (I) 10% of the Commitments and (II) $79,800,000 and (2) the Consolidated Fixed Charge Coverage Ratio for the most recent Test Period for which financial statements have been delivered pursuant to clause (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between of Section 10.1.1 is greater than 1.0 to 1.0 or among Restricted Subsidiaries that are not Credit Parties, (B) Excess Availability is greater than the higher of (1) 15% of the Commitments and (c2) consisting of intercompany Investments incurred $126,000,000; provided that if the test set forth in clause (g)(ii)(A) or (g)(ii)(B) above is not satisfied, then the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower Loan Parties and the Restricted Subsidiaries shall be permitted to make Investments in an aggregate amount (provided that net of repayments) not to exceed $150,000,000 during the term of this Agreement if, after giving effect to any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in on the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each date such Investment at the time each such Investment was is made, would not exceed U.S. Availability is greater than the sum higher of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus 10% of the U.S. Revolver Commitments and (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties$84,000,000;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions sales, transfers and other dispositions of assets to the extent permitted by Section 10.410.2.4;
(kj) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof MRC Global owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower MRC Global and its Restricted Subsidiaries;
(or any direct or indirect parent thereof)k) Investments permitted under Section 10.2.6;
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course Ordinary Course of businessBusiness, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course Ordinary Course of businessBusiness;
(om) Investments in the ordinary course Ordinary Course of business Business consisting of Article 3 endorsements for collection or deposit and Article 4 customary trade arrangements with customers consistent with past practices;
(pn) advances of payroll payments to employees in the ordinary course Ordinary Course of businessBusiness;
(qo) Guarantee Obligations of the Borrower any Loan Party or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course Ordinary Course of businessBusiness;
(rp) Investments held by of a Person Restricted Subsidiary acquired (including by way of merger or consolidation) after the Original Closing Date otherwise or of any Person merged into any Borrower or merged or consolidated with a Restricted Subsidiary in accordance with this Section 10.5 10.2.3 after the Closing Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(sq) Investments in Hedge Agreements constituting Guarantee Obligations of Indebtedness permitted by under Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.310.2.1; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(zr) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Loan Party in an aggregate amount any other Restricted Subsidiary that is not a Loan Party or in a Receivables Entity or by a Receivables Entity in any other Person pursuant to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Datea Qualified Receivables Transaction.
Appears in 1 contract
Samples: Loan, Security and Guarantee Agreement (MRC Global Inc.)
Limitation on Investments. The Borrower will notLoans and Advances. Make any advance, and will not permit loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities, of the Restricted Subsidiaries to or any assets constituting a business unit of, or make any Investment other investment in, any Person, except:
(a) Permitted Investments;
(b) Investments existing on the Effective Date and listed on Schedule 8.7 hereof;
(c) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were made;
(cd) loans and advances to officers, directors officers and employees of the a Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable to officers and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date and any extensions, renewals or reinvestments thereof, so long as the amount employees of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect an aggregate amount, not to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that exceed $1,000,000 at any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Partyone time outstanding, to the extent that the aggregate amount of all permitted by applicable law;
(e) Intercompany Loans, Advances or Investments made on or after the 2014 July Repricing Effective Date by any Borrower or any Guarantor to any Domestic Loan Party; provided that any Intercompany Loan hereunder shall be evidenced by and funded under an Intercompany Note encumbered in favor of the Agent pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment a Security Agreement and provided further that at the time each any such Investment was madeloan, would not exceed the sum of advance or investment is made (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making effect thereto) no Default or Event of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time Default has occurred and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Partiescontinuing;
(hf) Investments constituting Permitted Acquisitions;
(ig) Investments (Intercompany Loans, Advances or Investments, including but not limited to (i) minority Investments those listed on Schedule 8.7 and Investments in Unrestricted Subsidiariesthose made after the Effective Date, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal all Borrowers to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Eligible Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed $35,000,000 at any one time outstanding (provided that all Intercompany Loans covered by this clause (except the fair market value existing $5,000,000 promissory note from Plastipak Brazil as maker to Packaging as payee, and any extensions and renewals thereof) shall be evidenced by and funded under an Intercompany Note encumbered in favor of all dividends the Agent pursuant to the applicable Security Agreement and provided further that at the time any such loan, advance or investment is made (before and after giving effect thereto) no Default or Event of Default has occurred and is continuing); and
(h) Investments other distributions received by Credit Parties from Restricted Subsidiaries that are than those set forth in clauses (a) through (g) above or on Schedule 8.7 hereof, in aggregate amount outstanding at any one time not Credit Parties since to exceed $5,000,000. In valuing any Investments for the Initial Effectiveness Datepurpose of applying the limitations set forth in this Section 8.7 (except as otherwise expressly provided herein), such Investment shall be taken at the original cost thereof, without allowance for any subsequent write-offs or appreciation or depreciation, but less any amount repaid or recovered on account of capital or principal.
Appears in 1 contract
Samples: Revolving Credit Agreement (Plastipak Holdings Inc)
Limitation on Investments. The Borrower will notLoans and Advances. Make any advance, and will not permit loan, extension of credit or capital contribution to, or incur any Guarantee Obligation on behalf or for the 59 54 benefit of, or purchase any stock, bonds, notes, debentures or other securities of the Restricted Subsidiaries to or any assets constituting a business unit of, or make any Investment other investment (including by the issuance of letters of credit) in (collectively, "Investments"), any Person, except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madein Cash Equivalents;
(c) loans and advances to officers, directors officers and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) Subsidiary for reasonable and customary business-related travel, entertainment, entertainment and relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred expenses in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among an aggregate amount for the Borrower and its Subsidiaries not to exceed $500,000 at any one time outstanding;
(d) investments, loans or advances, the Restricted Subsidiaries material details of which have been set forth on Schedule 8.8;
(provided that e) so long as no Default or Event of Default shall have occurred and be continuing, Investments by the Borrower in any such intercompany Investment Wholly-Owned Subsidiary which is a Guarantor and Investments by any Wholly-Owned Subsidiary which is a Guarantor in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Wholly-Owned Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Partieswhich are Guarantors;
(hf) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Business Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of businessthe Oil and Gas Business in an amount (valued at the time of making thereof) not to exceed, in the aggregate, $2,500,000 during any fiscal year of the Borrower;
(rg) Investments held by a Person acquired (including by way of merger constituting Permitted Business Acquisitions made or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments entered into in the ordinary course of business the Oil and Gas Business; provided that with respect to a Permitted Business Acquisition which is not an acquisition funded entirely with the common stock of the Borrower, after giving effect to the consummation of the transactions contemplated by such Permitted Business Acquisition and the Loans to be made and the Letters of Credit to be issued hereunder in connection with Settlements;
(v) other Investmentstherewith, that, at the time each such Investment is made, would not exceed the sum of (xi) $750,000,000 plus (y) if the cash and Cash Equivalents then held by the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, (ii) an amount equal to the making of such Investmentdifference between (A) the aggregate Revolving Credit Commitments (or, if less, the Applicable Amount plus Borrowing Base) in effect at such time and (zB) the Applicable Equity Amount Aggregate Revolving Credit Exposure of all the Lenders at such time, equals at least $20,000,000;
(wh) Investments obligations (in connection with any transaction permitted each case not outstanding for more than 90 days) owed by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party Affiliates under operating agreements relating to Oil and Gas Properties in an aggregate amount not to exceed $5,000,000 at any time;
(i) transactions expressly permitted under (i) subsection 8.2 (provided, that no loans may be made by the fair market value Borrower pursuant to subsection 8.2(e) at any time when a Default or Event of all dividends Default shall have occurred and other distributions received by Credit Parties from Restricted Subsidiaries that are be continuing), (ii) subsection 8.3, (iii) subsection 8.4 or (iv) subsection 8.5 or (v) subsection 8.16, as applicable; and
(j) Investments not Credit Parties since the Initial Effectiveness Date.otherwise permitted hereunder in an amount at any time not in excess of $1,000,000. 60 55
Appears in 1 contract
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to make any Investment except:
(a) extensions of trade credit and asset purchases of assets and services (including purchases of inventory, supplies and materials) in the ordinary course of business;
(b) Investments in assets that were constituted Permitted Investments when at the time such Investments were mademade and Permitted Acquisitions;
(c) loans and advances to officers, directors directors, employees and employees consultants of the Borrower (or any direct or indirect parent thereof) or any of its Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash cash) and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,00020,000,000;
(di) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Closing Date as set forth on Schedule 10.5, and any extensions, renewals or reinvestments thereof, so long as the amount of any such Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment set forth on Schedule 10.5 (if applicable), and (ii) Investments existing on, on and made prior to the Closing Date of the Borrower or made pursuant to legally binding written commitments any Subsidiary in existence on, the 2014 July Repricing Effective Dateany other Subsidiary;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents (other than Disqualified Stock not otherwise permitted by Section 10.1) of Holdingsthe Borrower (or any direct or indirect parent thereof);
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Unrestricted Subsidiaries (provided that any no Event of Default shall then exist and, to the extent such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is made in the form of an intercompany loan a transfer of assets other than cash or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable)Permitted Investments, (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and Financial Performance Covenants on a pro forma basis after giving effect, on a Pro Forma Basis effect to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in covenants are recomputed as at the proceeds last day of the initial most recently ended Test Period as if such Investment being invested in one or more Credit Partieshad occurred on the first day of such Test Period);
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless respect of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition royalty trusts and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Partiesmaster limited partnerships), in each case valued at the fair market value Fair Market Value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (iSection 10.5(h) that, at the time each such Investment is made, would not exceed the sum of (xA) the greater of (1) $1,000,000,000 when taken together with Investments outstanding at 125,000,000 and (2) 1.25% of Consolidated Total Assets (measured as of the date such time in reliance on Section 10.5(g)(ii)(xInvestment is made based upon the financial statements most recently available prior to such date) plus (yB) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Equity Amount at such time plus (zC) without duplication to the extent not otherwise included in the determination of any amount that increased the JV Distribution Applicable Equity Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value Fair Market Value of such Investment at the time such Investment was made); provided that the foregoing limits shall not apply during the period in which, and Investments may be made pursuant to this Section 10.5(h) plus without limit at any such time during which, after giving pro forma effect to the making of any such Investment, (aa1) no Event of Default shall have occurred and be continuing and (2) Liquidity is not less than 10% of the Applicable Equity Amount then effective Loan Limit (on a pro forma basis after giving effect to such Investment); provided, further, that intercompany current liabilities incurred in the ordinary course of business and consistent with past practices, in connection with the cash management operations of the Borrower and the Subsidiaries shall not be included in calculating any limitations in this paragraph at such any time;
(ji) Investments constituting non-cash proceeds of Dispositions of assets to the extent such Disposition is permitted by Section 10.4;
(kj) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(mk) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends Restricted Payments to the extent permitted to be made to such parent in accordance with Section 10.6;
(nl) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(om) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(pn) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of business;
(qo) Guarantee Obligations guarantee obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(rp) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(sq) Investments in Industry Investments and in interests in additional Oil and Gas Properties, Carbon Dioxide Interests or other material properties and gas gathering systems related thereto or Investments related to farm-out, farm-in, joint operating, joint venture, joint development or other area of mutual interest agreements, other similar industry investments, gathering systems, pipelines or other similar oil and gas exploration and production business arrangements or enhanced oil recovery business arrangements, whether through direct ownership or ownership through a joint venture or similar arrangement;
(r) Investments in Hedge Agreements permitted by Section 10.10;
(s) Investments consisting of Indebtedness, fundamental changes, Dispositions and Restricted Payments permitted under Sections 10.1, 10.3, 10.4 and 10.6 (other than 10.6(c));
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(zu) Investments (i) by the Borrower in any Guarantor or by any Credit Party Guarantor in the Borrower, (ii) by any Restricted Subsidiary that is not a Guarantor in the Borrower or any other Restricted Subsidiary, and (iii) by the Borrower or any Guarantor in any Restricted Subsidiary that is not a Credit Party Guarantor, valued at the Fair Market Value (determined by the Borrower in good faith) of such Investment at the time each such Investment is made, in an aggregate amount outstanding pursuant to this clause (iii) that, at the time such Investment is made, would not to exceed the fair market value sum of all dividends (A) 3.00% of Consolidated Total Assets (measured as of the date such Investment is made based upon the financial statements most recently available prior to such date), (B) the Applicable Equity Amount at such time and other distributions (C) to the extent not otherwise included in the determination of the Applicable Equity Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received by Credit Parties from Restricted Subsidiaries that are in cash in respect of any such Investment described in this clause (iii) (which amount shall not Credit Parties since exceed the Initial Effectiveness Dateamount of such Investment valued at the Fair Market Value of such Investment at the time such Investment was made).
Appears in 1 contract
Limitation on Investments. The Borrower will notMake any Investment, and will not permit any of the Restricted Subsidiaries to make any Investment except:
(a) extensions of trade credit and asset purchases in or the ordinary course holding of business;
(b) Investments that were Permitted Investments when such Investments were made;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising receivables in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(ob) Investments in the ordinary course of business consisting of endorsements for collection cash and Cash Equivalents or investment grade securities and deposit accounts, securities accounts and customary trade arrangements with customers consistent with past practicescommodities accounts related thereto;
(pc) Investments existing (or committed to be made) on the Closing Date and identified on Schedule 6.7(c) and any modification, replacement, renewal, reinvestment or extension thereof (provided, that the amount of the original Investment (or the committed amount) is not increased except by the terms of such original Investment or commitment or as otherwise permitted by this Section 6.7);
(d) loans and advances to employees, officers, directors, managers, advisers, service providers and consultants of any Group Member (or any direct or indirect parent thereof), (i) for reasonable and customary, salary, commission, business-related travel, entertainment, relocation and analogous ordinary business purposes, (ii) in connection with such Person’s purchase of Capital Stock of Holdings (or any direct or indirect parent thereof); provided, that, the amount of such loans and advances made in cash and used to acquire such Capital Stock shall be contributed to the Parent Borrower in cash, (iii) relating to indemnification or reimbursement of any officers, directors or employees in respect of liabilities relating to their serving in such capacity or as otherwise specified in Section 6.9 and (iv) for any other purpose not described in clauses (i), (ii) or (iii); provided, that the aggregate amount outstanding under clauses (ii) and (iv) shall not exceed the greater of (x) $10 million and (y) 10% of Trailing Four Quarter Consolidated EBITDA;
(e) Investments made (i) on the Closing Date to consummate the Transactions, (ii) in respect of working capital adjustments or purchase price adjustments pursuant to the Purchase Agreement, any Permitted Acquisition or other permitted Investments, and (iii) in order to satisfy indemnity and other similar obligations under the Purchase Agreement, any Permitted Acquisition or other permitted Investments;
(f) Investments by the Group Members constituting the purchase or other acquisition of all or substantially all of the property and assets or businesses of any Person or all or substantially all of the assets constituting a business unit, a line of business or division of such Person, or at least 50.1% of the Capital Stock in a Person that, upon the consummation thereof, will be, or will become part of, a Subsidiary of the Parent Borrower (including as a result of a merger, amalgamation or consolidation) (each, a “Permitted Acquisition”); provided, that
(i) the acquired Person, property, assets or divisions shall comply with the requirements of Section 6.13;
(ii) all of the applicable provisions of Section 5.9 and the Security Documents have been or will be complied with in respect of such Permitted Acquisition (other than to the extent any Subsidiary purchased or acquired in such Permitted Acquisition is designated as an Unrestricted Subsidiary pursuant to Section 5.13 or is otherwise an Excluded Subsidiary);
(iii) the aggregate amount of such Permitted Acquisitions by Loan Parties in assets that are not (or do not become) directly owned by the Parent Borrower, any other Borrower or a Subsidiary Guarantor or in Capital Stock of Persons that do not become Loan Parties shall not exceed the greater of (x) $40 million and (y) 40% of Trailing Four Quarter Consolidated EBITDA; and
(iv) after giving pro forma effect to such acquisition the Parent Borrower is in compliance with the Payment Conditions.
(g) Investments received in connection with the workout, bankruptcy or reorganization of, insolvency or liquidation of, or settlement of claims against and delinquent accounts of and disputes with, franchisees, customers and suppliers, or as security for any such claims, accounts and disputes, or upon the foreclosure with respect to any secured Investment;
(h) advances of payroll payments to employees employees, officers, directors and managers of the Parent Borrower and its Restricted Subsidiaries in the ordinary course of business;
(qi) Guarantee Obligations Investments consisting of transactions permitted by Section 6.5 (other than Section 6.5(m));
(j) intercompany Investments (including intercompany Indebtedness) by any Group Member that is (i) a Loan Party in the Parent Borrower, any other Borrower or a Subsidiary Guarantor (subject to the cap on Investments by a US Loan Party in any Canadian Loan Party contained in the proviso in clause (j)(iii) below), (ii) a Non-Loan Party Subsidiary in any Group Member, (iii) a Loan Party in any Non-Loan Party Subsidiary (provided, that the aggregate amount of Investments under this clause (j)(iii) together with Investments by a US Loan Party in any Canadian Loan Party do not exceed the greater of (x) $40 million and (y) 40% of Trailing Four Quarter Consolidated EBITDA), (iv) an Excluded Subsidiary in another Excluded Subsidiary, and (v) a Loan Party in Holdings so long as such Investments constitute Junior Debt and if structured as a Restricted Payment would be permitted under Section 6.6 and reduces any basket relied on for such purpose;
(k) Investments consisting of promissory notes and other deferred payment obligations and noncash consideration delivered as the purchase consideration for a Disposition permitted by Section 6.5;
(l) to the extent constituting any Investment, any Receivables Facility or any Factoring Facility permitted hereunder;
(m) Group Members may endorse negotiable instruments and other payment items for collection or deposit in the ordinary course of business or make lease, utility and other similar deposits in the ordinary course of business;
(n) Investments consisting of obligations under Swap Contracts permitted by Section 6.2;
(o) Investments consisting of transactions permitted by Section 6.6 or Section 6.8;
(p) Investments of any Person that becomes (or is merged or consolidated or amalgamated with) a Restricted Subsidiary of leases the Parent Borrower on or after the date hereof on the date such Person becomes (other than Capital Leasesor is merged or consolidated or amalgamated with) a Restricted Subsidiary of the Parent Borrower; provided, that (i) such Investments exist at the time such Person becomes (or is merged or consolidated or amalgamated with) a Restricted Subsidiary and (ii) such Investments are not made in anticipation or contemplation of such Person becoming (or merging or consolidating or amalgamated with) a Restricted Subsidiary;
(q) Investments consisting of deposits made in accordance with clauses (c), (d), (o), (u), (y), (z)(ii) or (ee) of Section 6.3;
(r) other Investments in an aggregate amount not to exceed the greater of (x) $40 million and (y) 40% of Trailing Four Quarter Consolidated EBITDA;
(s) other Investments so long as the Payment Conditions are satisfied;
(t) deposits made in the ordinary course of business to secure the performance of leases or in connection with bidding on government contracts;
(u) advances in connection with purchases or sales of goods or services in the ordinary course of business;
(v) Guarantee Obligations, guarantees, letters of credit and similar obligations that do in respect of obligations not constitute Indebtedness, in each case constituting Indebtedness for borrowed money entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction consisting of Liens permitted by under Section 10.3; and6.3;
(x) Investments consisting of licensing of intellectual property with other Persons in the ordinary course of businesstransactions permitted under Section 6.4, except for Section 6.4(e);
(y) Investments constituting contributions to the extent that payment for such Investments is made solely with Qualified Capital Stock of Holdings (or other dispositions Capital Stock of any Foreign Subsidiary to another Foreign Subsidiary; anddirect or indirect parent thereof);
(z) [reserved];
(aa) Investments by any Credit Party made in any Restricted Subsidiary that is not connection with the Transactions, an IPO Reorganization Transaction or a Credit Party Permitted Reorganization;
(bb) [reserved];
(cc) Investments in an aggregate amount not to exceed (i) Excluded Contributions minus (ii) Permitted Excluded Contribution Utilizations (other than as described in clause (iii) thereof);
(dd) the fair market Parent Borrower and its Restricted Subsidiaries may acquire Capital Stock in connection with the satisfaction or enforcement of Indebtedness or claims due or owing to the Parent Borrower or any of its Restricted Subsidiaries or as security for any such Indebtedness or claim;
(i) Investments in respect of joint ventures, partnerships, or minority investments (other than, in each case, Unrestricted Subsidiaries), in an amount under this sub-clause (i), in the aggregate not to exceed the greater of (x) $25 million and (y) 25% of Trailing Four Quarter Consolidated EBITDA, and (ii) Investments in respect of Unrestricted Subsidiaries or in a Restricted Subsidiary to enable such Restricted Subsidiary to make such Investments in Unrestricted Subsidiaries, in an amount under this sub-clause (ii), in the aggregate, not to exceed the greater of (x) $25 million and (y) 25% of Trailing Four Quarter Consolidated EBITDA;
(ff) Investments in connection with reorganizations and other activities related to tax planning and reorganization, so long as after giving effect thereto, the interest of the Secured Parties in the Collateral and the guarantees under the US Guarantee and Collateral Agreement or the Canadian Guarantee and Collateral Agreement, taken as a whole, is not materially impaired;
(gg) Investments consisting of licensing or contribution of Intellectual Property pursuant to joint marketing arrangements with other Persons on a non-exclusive basis;
(hh) contributions to a “rabbi” trust for the benefit of employees or other grantor trust subject to claims of creditors in the case of a bankruptcy of a Loan Party; (ii) Investments entered into by an Unrestricted Subsidiary prior to the date such Unrestricted Subsidiary is redesignated as a Restricted Subsidiary pursuant to Section 5.13; provided that such Investment was not entered into in contemplation of such Unrestricted Subsidiary becoming a Restricted Subsidiary;
(ii) investments in any Person engaged in a Permitted Business (other than an Investment in an Unrestricted Subsidiary) not to exceed, in the aggregate, the greater of (x) $30 million and (y) 30% of Trailing Four Quarter Consolidated EBITDA;
(jj) Investments (other than Investments in an Unrestricted Subsidiary) made by a Restricted Subsidiary that is not a Loan Party financed with operating cash flow of such Restricted Subsidiary; and
(kk) Investments made in reliance on the last paragraph of Section 6.6 or the last paragraph of Section 6.8; provided, that for purposes of covenant compliance, determining compliance with any representation, warranty, Default or Event of Default, the amount of any Investment at any time shall be the amount actually invested (measured at the time made), without adjustment for subsequent changes in the value of such Investment, net of all dividends Returns on such Investment up to the original amount of such Investment; provided, that any intercompany Investment permitted above that is in the form of a loan or advance owed to (A) a Loan Party shall be evidenced by an intercompany note (individually or pursuant to a global note (which global note may be a Subordinated Intercompany Note)) and pledged by such Loan Party as Collateral pursuant to the Security Documents and (B) a Non-Loan Party Subsidiary by a Loan Party shall be subordinated and subject to and in accordance with the terms of a Subordinated Intercompany Note or such other distributions received note in form and substance reasonably satisfactory to the Agent. To the extent an Investment is permitted to be made by Credit Parties from a Loan Party directly in any Restricted Subsidiaries Subsidiary or any other Person who is not a Loan Party (each such person, a “Target Person”) under any provision of this Section 6.7, such Investment may be made by advance, contribution or distribution by a Loan Party to a Restricted Subsidiary or Holdings, and further contemporaneously advanced or contributed to a Restricted Subsidiary for purposes of making the relevant Investment in the Target Person without constituting an Investment for purposes of Section 6.7 (it being understood that are not Credit Parties since such Investment must satisfy the Initial Effectiveness Daterequirements of, and shall count towards any thresholds in, a provision of this Section 6.7 as if made by the applicable Loan Party directly to the Target Person).
Appears in 1 contract
Samples: Abl Credit Agreement (Specialty Building Products, Inc.)
Limitation on Investments. The Borrower will not, not and will not permit any of the Restricted Subsidiaries to to, make any Investment advance, loan, extensions of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets of, or make any other investment in, any Person (all of the foregoing, “Investments”), except:
(a) extensions of trade credit and credit, asset purchases (including purchases of inventory, Intellectual Property, supplies and materials), the lease of any asset and the licensing or contribution of Intellectual Property pursuant to joint marketing arrangements with other Persons, in each case in the ordinary course of business;
(b) Investments that were Permitted Investments when in assets constituting Cash Equivalents at the time such Investments were are made;
(c) loans and advances to officers, directors directors, employees and employees consultants of the Borrower Holdings (or any direct or indirect parent Parent Entity thereof) ), the Borrower or any of its Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s to finance the purchase of Capital Stock or Stock Equivalents of the Borrower Holdings (or any direct or indirect parent Parent Entity thereof); provided that, to the extent such loans and advances are made in cash, that the amount of such loans and advances used to acquire such Capital Stock or Stock Equivalents shall be contributed to the Borrower in cash as common equity, (ii) for reasonable and customary business related travel expenses, entertainment expenses, moving expenses and similar expenses, in each case incurred in the ordinary course of business, and (iii) for additional purposes not described contemplated by subclause (i) or (ii) above; provided that at the time of the making of any such Investment, and after giving Pro Forma Effect thereto and the use of the proceeds thereof, the aggregate principal amount of Investments outstanding in reliance on this Section 10.5(c)(iii) shall not exceed the greater of (x) $20,000,000 and (y) 0.5% of Consolidated Total Assets (measured as of the date such loans or advances are made based upon the Section 9.1 Financials most recently delivered on or prior to such date the loans or advances are made);
(d) Investments (i) existing or contemplated on the Effective Date and listed on Schedule 10.5, (ii) existing on the Effective Date of the Borrower or any Restricted Subsidiary in the foregoing subclauses Borrower or any other Restricted Subsidiary and (iii) in the case of each of clauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, any modification, replacement, renewal, extension or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date and any extensions, renewals or reinvestments reinvestment thereof, so long as the aggregate amount of any Investment made all Investments pursuant to this clause (dSection 10.5(d) is not increased at any time above the amount of such Investments existing or contemplated on the Effective Date, except pursuant to the terms of such Investment existing on, or made pursuant to legally binding written commitments in existence on, contemplated as of the 2014 July Repricing Effective DateDate or as otherwise permitted by this Section 10.5;
(e) Investments in Hedging Agreements permitted by Section 10.1(i);
(f) Investments (i) received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers or suppliers arising in the ordinary course of business or upon the foreclosure with respect to any secured Investment or other transfer of title with respect to any secured InvestmentInvestment and (ii) consisting of the purchase or acquisition of securities from customers as a result of legal proceedings or regulatory requirements or settlements in the ordinary course of business;
(fg) Investments to the extent that the payment for such Investments is made solely with the Capital Stock of Holdings (or Stock Equivalents of Holdingsany Parent Entity thereof) or the Borrower;
(gh) Investments constituting non-cash proceeds of sales, transfers and other Dispositions of assets to the extent permitted by Sections 10.3 and 10.4;
(i) Investments (i) in the Borrower or any Guarantor or in any 100% Non-Guarantor Pledgee, (aii) by any Restricted Subsidiary that is not a Subsidiary Guarantor in the Borrower or any other Restricted Subsidiary, and (iii) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties Guarantor in any Restricted Subsidiary that is not a Credit PartyGuarantor (A) in connection with reorganizations and related activities related to tax planning and reorganizations; provided that, except during a Suspension Period, after giving effect to any such reorganization and related activities, the value of the Collateral, taken as a whole, is not materially impaired and (B) in addition to Investments made pursuant to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause foregoing clause (iiA), when Investments valued at the fair market value (determined by the Borrower acting in good faith) Fair Market Value of each such Investment Investments at the time each such Investment was is made, in an aggregate amount, measured, at the time such Investment is made, that would not exceed the sum of (x) $1,000,000,000exceed, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis effect to the making of such Investment, the Applicable sum of (1) the greater of $20,000,000 and 0.5% of Consolidated Total Assets (measured as of the date such Investment is made based upon the Section 9.1 Financials most recently delivered on or prior to such date), (2) the Available Equity Amount at such time plus time, (z3) the Applicable Equity Available Amount at such time and (iii4) by Credit Parties in any Restricted Subsidiary that is to the extent not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result otherwise included in the proceeds determination of the initial Investment being invested in one Available Amount or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Available Equity Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value Fair Market Value of such Investment at the time such Investment was made)(it being understood that to the extent any Investment made pursuant to this Section 10.5(i) was made by using the Available Equity Amount, then the amounts referred to in this clause (iii)(B)(4) shall, to the extent of the original usage of the Available Equity Amount, be deemed to reconstitute such amounts (it being understood that the contribution of the equity interests of one or more “first tier” Foreign Subsidiaries to a Foreign Subsidiary that is a Restricted Subsidiary shall be permitted);
(j) Investments constituting Permitted Acquisitions; provided that the aggregate Permitted Acquisition Consideration relating to all such Permitted Acquisitions made or provided by the Borrower or any Subsidiary Guarantor to acquire any Restricted Subsidiary that does not become a Subsidiary Guarantor or a 100% Non-Guarantor Pledgee or merge, consolidate or amalgamate into Holdings, the Borrower, a Subsidiary Guarantor or a 100% Non-Guarantor Pledgee or any assets that shall not, immediately after giving effect to such Permitted Acquisition, be owned by Holdings, the Borrower, a Subsidiary Guarantor or a 100% Non-Guarantor Pledgee, shall not exceed an aggregate amount that, measured at the time such Investment is made, after giving effect to such Investment, the sum of (i) the greater of (x) $250,000,000 and (y) 6.75% of Consolidated Total Assets (measured as of the date such Investment is made based upon the Section 9.1 Financials most recently delivered on or prior to such date), (ii) the Available Equity Amount at such time, (iii) the Available Amount at such time, (iv) to the extent not otherwise included in the determination of the Available Amount, the Remaining Dividends Amount or the Available Equity Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount shall not exceed the amount of such Investment valued at the Fair Market Value of such Investment at the time such Investment was made) plus (aait being understood that to the extent any Investment made pursuant to this Section 10.5(j) was made by using the Available Equity Amount, then the amounts referred to in this clause (iv) shall, to the extent of the original usage of the Available Equity Amount, be deemed to reconstitute such amounts) and (v) the Applicable Equity Remaining Dividends Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Capital Stock of Holdings (or Stock Equivalents of any Parent Entity thereof) or the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower Holdings (or any direct Parent Entity thereof) or indirect parent thereof)the Borrower;
(l) Investments consisting in the business of dividends permitted under Section 10.6the Borrower and its Restricted Subsidiaries made by the Borrower or any of its Restricted Subsidiaries with the proceeds of any Asset Sale Prepayment Event or Recovery Event prior to the end of the Reinvestment Period or pursuant to an Acceptable Reinvestment Commitment or Restoration Certification;
(m) loans and advances the Borrower may make a loan to any direct or indirect parent of the Borrower in lieu ofParent Entity thereof that could otherwise be made as a Dividend to any Parent Entity thereof under Section 10.6, and not in excess of so long as the amount of, dividends to of such loan is deducted from the extent permitted amount available to be made to such parent in accordance with as a Dividend under the applicable clause of Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of Article 3 endorsements for collection or deposit and Article 4 customary trade arrangements with customers consistent with past practices;
(po) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(rp) Investments held by a any Person acquired (including by way of merger the Borrower or consolidation) a Restricted Subsidiary after the Original Closing Effective Date otherwise or of any Person merged into the Borrower or merged, amalgamated or consolidated with a Restricted Subsidiary in accordance with this Section 10.5 10.3 after the Effective Date to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(sq) Investments in Hedge Agreements permitted Guarantees by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be or any Restricted Subsidiary of leases (other than Capitalized Leases) or of other obligations that do not constitute Indebtedness, in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3; and
(x) Investments consisting of licensing of intellectual property with other Persons each case entered into in the ordinary course of business;
(yr) Investments constituting contributions or other dispositions of any Foreign OCC-Regulated Subsidiary to another Foreign Subsidiary; andin the Capital Stock of the Federal Reserve Bank in the district in which such Subsidiary is located in accordance with the provisions of the Federal Reserve Act;
(zs) Investments in “seed investment portfolios” for the purpose of testing and determining model portfolios in the ordinary course of business and consistent with past business practice; provided, that at the time of the making of any such Investment, and after giving Pro Forma Effect thereto and the use of the proceeds thereof, the aggregate principal amount of Investments outstanding in reliance on this Section 10.5(s) would not exceed (i) the greater of $35,000,000 and 0.75% of Consolidated Total Assets (measured as of the date such Investment is made based upon the Section 9.1 Financials most recently delivered on or prior to such date of such Investment) determined after giving effect to the making of such Investment, plus (ii) the Available Amount at such time, plus (iii) the Available Equity Amount, plus (iv) to the extent not otherwise included in the determination of the Available Amount, the Remaining Dividends Amount or the Available Equity Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made), plus (v) the Remaining Dividends Amount at such time;
(t) Investments consisting of Indebtedness, Dispositions, Dividends and debt payments permitted under Sections 10.1, 10.3, 10.4 (other than 10.4(e) or 10.4(f)), 10.6 (other than 10.6(c)) and 10.7;
(u) intercompany Investments in the form of loans, advances or extensions of credit by any Credit Party in to any Restricted Subsidiary that is not a Credit Party Subsidiary Guarantor in the ordinary course of business for working capital purposes; provided, that such loans, advances or extensions of credit shall be evidenced by the Intercompany Note to the extent required by Section 9.12(b);
(v) Investments made after the Fourth Amendment Effective Date in an aggregate amount not to exceed in the aggregate outstanding at any time the greater of $550,000,000 and 100.0% of Consolidated EBITDA for the Test Period most recently then-ended for which the Section 9.1 Financials required by Section 9.1(a) or Section 9.1(b) have actually been delivered in respect of (i) loans and advances to financial advisors to assist with the costs (including without limitation foregone revenues and repayment of indebtedness) associated with transitioning such advisors’ licenses or businesses to the Borrower and its Subsidiaries or to platforms utilized by the Borrower and its Subsidiaries, and for the purchase of other financial advisors’ businesses and for incidental and working capital purposes, (ii) guarantees of the obligations of financial advisors by the Borrower or any Restricted Subsidiary to any Person making loans, mortgages, advances and extensions of credit to such financial advisors, (iii) loans and advances (including Margin Loans) to customers of financial advisors and (iv) loans and advances to vendors;
(w) Securities Owned (as set forth on the balance sheet of the Broker-Dealer Regulated Subsidiary) for a period no longer than 10 Business Days following a securities trade from a customer account and constituting securities transactions entered into by the Broker-Dealer Regulated Subsidiary for the purpose of making adjustments to such Subsidiary’s customer accounts with respect to such securities trade, with the fair market value of all dividends such Securities Owned (as set forth on the balance sheet of the Broker-Dealer Regulated Subsidiary), not to exceed $20,000,000 in the aggregate at any time outstanding;
(x) any additional Investments (including Investments in Minority Investments, Investments in Unrestricted Subsidiaries, Investments in joint ventures or similar entities that do not constitute Restricted Subsidiaries, Investments constituting Permitted Acquisitions and other distributions received by Credit Parties from Investments in Restricted Subsidiaries that are not, and do not Credit Parties since become, Subsidiary Guarantors or in any 100% Non-Guarantor Pledgee); provided that the Initial Effectiveness Date.aggregate amount of any such Investment shall not cause the aggregate amount of all such Investments made pursuant to this Section 10.5(x) after the Fourth Amendment Effective Date to exceed, after giving effect to such Investment, the sum of (A) the greater of (x) $350,000,000 and (y) 64 % of Consolidated EBITDA (measured as of the date such Investment is made based upon the Section 9.1 Financials most recently delivered on or prior to such date), plus (B) the Available Equity Amount at such time, plus (C) the Available Amount at such time, plus (D) to the extent not otherwise included in the determination of the Available Amount, the Remaining Dividends Amount or the Available Equity Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in respect of any such Investment (which amount shall not exceed the amount of such Investment) (it being understood that to the extent any Investment made pursuant to this Section 10.5(x) was made by using the Available Equity Amount, then the amounts referred to in this clause (D) shall, to the extent of the original usage of the Available Equity Amount, be deemed to reconstitute such amounts), plus (E) the Remaining Dividends Amount at such time; provided, further, that intercompany current liabilities incurred in the ordinary course of business and consistent with past practices, in connection with the cash management operations of the Borrower and the Restricted Subsidiaries shall not be included in calculating the limitation in this Section 10.5(x) at any time;
(y) additional Investments (including, without limitation, Permitted Acquisitions) such that, after giving Pro Forma Effect to such Investments, no Event of Default shall have occurred and be continuing and the Borrower would be in compliance with a Consolidated Total Debt to Consolidated EBITDA Ratio as of the most recently ended Test Period on or prior to the making of such Investments, calculated on a Pro Forma Basis, as if such Investments had occurred on the first day of such Test Period, that is no greater than 2.75:1.00;
(z) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction
Appears in 1 contract
Limitation on Investments. The Borrower Company will not, and nor will not it permit any of the Restricted its Subsidiaries to, directly or indirectly, make or permit to make exist any Investment exceptin any other Person except (without duplication) the following:
(a) extensions contributions by the Company to the capital of trade credit any of its Wholly-Owned Subsidiaries, or by any such Wholly-Owned Subsidiary to the capital of any of its Wholly-Owned Subsidiaries in each case where such Wholly-Owned Subsidiary has executed and asset purchases delivered a Subsidiary Guarantee (which is then in full force and effect) and is not a Foreign Subsidiary; provided, however, that the Company's total investment, directly or indirectly, in Integrity Publishers, Inc., a Delaware corporation ("Integrity Publishers"), INO Records, LLC, a Tennessee limited liability company ("INO Records") or Enlight, whether in the form of equity, loans, advances or otherwise, shall not exceed $10,000,000 with respect to Integrity Publishers, $4,000,000 with respect to INO Records and $250,000 with respect to Enlight;
(b) in the ordinary course of business, Investments by the Company in any Subsidiary or by any Subsidiary in the Company, by way of intercompany loans, advances or guaranties, all to the extent permitted by Section 14.5(i);
(c) Permitted Guaranties;
(d) Cash Equivalent Investments;
(e) bank deposits in the ordinary course of business;
(bf) Investments that were Permitted Investments when such Investments were made;
(c) loans and advances to officers, directors and employees in securities of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding account debtors received pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, any plan of reorganization or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date;
(e) Investments received in connection with similar arrangement upon the bankruptcy or reorganization insolvency of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdingsaccount debtors;
(g) Investments (i) (a) advances by the Borrower Company or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repaymentsrecording artist, interestsongwriter, returnsproducer, profitsarranger, distributionsrecord label, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase book author, contract writer or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers distributor in the ordinary course of business;
(oh) Investments in loans by the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practicesCompany to its stockholders which shall not at any time exceed $350,000 made to such stockholders to permit such stockholders to pay income taxes resulting from the Merger;
(pi) advances of payroll payments Loans to employees any Integrity International Subsidiary not to exceed $275,000 in the ordinary course of businessaggregate outstanding at any time that are appropriately reflected on the Company's financial records;
(qj) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of businessPermitted Acquisitions;
(rk) Investments held to consummate acquisitions permitted by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation14.13;
(sl) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlements;
(v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, listed on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3Exhibit 14.11; and
(m) Investments in joint ventures in substantially similar lines of business as the Company made after the Closing Date not to exceed $250,000 in the aggregate; provided that (x) Investments consisting any Investment which when made complies with the requirements of licensing the definition of intellectual property the term "Cash Equivalent Investment" may continue to be held notwithstanding that such Investment if made thereafter would not comply with other Persons in the ordinary course of business;
such requirements; (y) Investments constituting contributions no Investment otherwise permitted by clause (b), (c), (g) or other dispositions (m) shall be permitted to be made if, immediately before or after giving effect thereto, any Event of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness DateDefault exists.
Appears in 1 contract
Samples: Securities Purchase Agreement (Integrity Media Inc)
Limitation on Investments. The Borrower will notMake any advance, and will not permit loan, extension of credit (by way of guaranty or otherwise) or capital contribution to, or purchase any Capital Stock, bonds, notes, debentures or other debt securities of, or any assets constituting an ongoing business from, or make any other investment in, any other Person (all of the Restricted Subsidiaries to make any Investment foregoing, “Investments”), except:
(a) extensions of trade credit and asset purchases in the ordinary course of business;
(b) Investments that were Permitted Investments when such Investments were madein Cash Equivalents;
(c) loans and advances to officers, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) Investments arising in connection with such Person’s purchase the incurrence of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereofIndebtedness permitted by Section 7.2(b); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000;
(d) Investments existing on, or made pursuant loans and advances to legally binding written commitments in existence onofficers of the Parent REIT, the 2014 July Repricing Effective Date Borrower or any Subsidiaries of the Borrower in the ordinary course of business (including, without limitation, for travel, entertainment and relocation expenses) in an aggregate amount for the Parent REIT, the Borrower and Subsidiaries of the Borrower not to exceed $250,000 at any extensions, renewals or reinvestments thereofone time outstanding;
(e) any Investments, so long as the amount (i) immediately prior to and immediately after giving effect to such Investment, no Default or Event of any Investment made pursuant Default shall have occurred and be continuing, and (ii) after giving pro forma effect to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence onInvestment, the 2014 July Repricing Effective DateBorrower shall be in compliance with the provisions of Sections 6.9 and 7.1 hereof;
(ef) to the extent constituting Investments, non-cash consideration received in connection with a Disposition permitted under this Agreement;
(g) Investments in Subsidiaries of the Parent REIT existing as of Fifth Amendment Effective Date, Investments in any Subsidiaries of the Parent REIT created after the Fifth Amendment Effective Date and Investments in any Person that, after giving effect to such Investment, shall become a Subsidiary of the Parent REIT;
(h) deposits required by government agencies or public utilities, and other deposits or pledges which constitute Permitted Liens;
(i) Investments received in connection with the bankruptcy or reorganization of suppliers of, or customers and in settlement of delinquent obligations of, accounts and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Parties)suppliers, in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(oj) Investments consisting of debt securities, equity securities and other non-cash consideration received as consideration for a disposition permitted by this Agreement;
(k) Investments in Unimproved Land including construction draws to tenants in connection with improvements thereon in an amount not to exceed 5% of Total Asset Value as of the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practicesdate any such Investment is made;
(pl) advances of payroll payments lease incentives (1) extended to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments tenants in the ordinary course of business in connection with Settlementsthe form of cash contributions to be used for such tenants’ capital expenditures and building improvements, which in each case generate additional Net Operating Income for the applicable Real Property Asset within twelve months after the date of extension of such lease incentive (provided that this clause (1) shall, for the avoidance of doubt, exclude lease incentives in the form of other preferential lease terms including free rent) and (2) in the form of other preferential lease terms (including free rent) in an aggregate amount under this clause (2) not to exceed $20,000,000 at any time outstanding;
(vm) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, transactions permitted under Section 7.4 to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3extent constituting Investments; and
(xn) other Investments consisting of licensing of intellectual property with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party otherwise permitted hereunder in an aggregate amount not to exceed $40,000,000 at any time outstanding. In determining the fair market aggregate amount of Investments outstanding at any particular time: (A) there shall be included as an investment all interest accrued with respect to Indebtedness constituting an Investment unless and until such interest is paid; (B) there shall be deducted in respect of each Investment any amount received as a return of capital; (C) there shall not be deducted in respect of any Investment any amounts received as earnings on such Investment, whether as dividends, interest or otherwise, except that accrued interest included as provided in the foregoing clause (A) shall be deducted when paid; and (D) the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Datethereof.
Appears in 1 contract
Samples: Credit Agreement (Essential Properties Realty Trust, Inc.)
Limitation on Investments. The Borrower will Borrowers shall not, and will shall not permit any of the Restricted Material Subsidiaries to, make, or suffer to exist, any 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 Investment other investment in, any Person, except:
(ai) extensions of trade credit and asset purchases in the ordinary course of business;
(bii) Investments that were Permitted Investments when such Investments were madeinvestments in Cash Equivalents;
(ciii) loans investments by any Borrower in any Material Subsidiary and advances to officersinvestments by such Material Subsidiary in any Borrower and in other Material Subsidiaries of any Borrower, directors and employees of the Borrower (or any direct or indirect parent thereof) or any of its Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to in the extent case of any such loans and advances are made in cashinvestment or a series of investments aggregating $25,000,000 or more, the amount Administrative Agent shall have received prior notice of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,000investment;
(div) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date and any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Date;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents of Holdings;
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Subsidiaries (provided that any such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is in the form of an intercompany loan or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable), (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party agreements evidencing Hedging Obligations so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in the proceeds of the initial Investment being invested in one or more Credit Parties;
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that agreements are not Credit Parties), in each case valued at the fair market value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (i) that, at the time each such Investment is made, would not exceed the sum of (x) $1,000,000,000 when taken together with Investments outstanding at such time in reliance on Section 10.5(g)(ii)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Amount at such time plus (z) without duplication of any amount that increased the JV Distribution Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value of such Investment at the time such Investment was made) plus (aa) the Applicable Equity Amount at such time;
(j) Investments constituting non-cash proceeds of Dispositions of assets to the extent permitted by Section 10.4;
(k) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(l) Investments consisting of dividends permitted under Section 10.6;
(m) loans and advances to any direct or indirect parent of the Borrower in lieu of, entered into for hedging and not in excess of the amount of, dividends to the extent permitted to be made to such parent in accordance with Section 10.6;
(n) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(o) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(p) advances of payroll payments to employees in the ordinary course of business;
(q) Guarantee Obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(r) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(s) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing;
(u) Investments in the ordinary course of business in connection with Settlementsspeculative purposes;
(v) other Investmentspurchases by any of the Borrowers or Material Subsidiaries of freely tradeable securities of public companies which constitute a portfolio investment, thatprovided that the aggregate cost of such securities does not at any time exceed Cdn.$5,000,000 and that the relevant Borrower or Material Subsidiary has granted a security interest in and to such securities to the Administrative Agent, at for and on behalf of the time each Lenders (without a requirement that such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall securities be in compliance deposited with the Senior Administrative Agent), as continuing collateral security for the payment and performance of the Secured Leverage TestObligations, both before pursuant to a pledge agreement in form and after giving effect, on a Pro Forma Basis, substance satisfactory to the making of such Investment, Administrative Agent and the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3Lenders; and
(vi) investments by BRL in Non-Recourse Subsidiaries, provided that, over the term of the Non-Revolving Facility (x) Investments consisting such investments are made by way of licensing of intellectual property with other Persons in the ordinary course of business;
new equity raised by BRL, (y) Investments constituting contributions prior to making such investment, BRL delivers to the Administrative Agent a pro-forma financial projection for the consolidated operations of BRL for the 12 month period following the proposed date of such investment (based on assumptions acceptable to the Lenders, acting reasonably). The Lenders hereby agree to release any Security they may have in the assets or other dispositions shares of any Foreign Non-Recourse Subsidiary upon a request in writing for same from the Borrowers; provided, however, that such request in writing from the Borrowers shall only be made following a request from a lender to such Non-Recourse Subsidiary for the grant of security over such assets or shares by such Non-Recourse Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Datesuch lender.
Appears in 1 contract
Limitation on Investments. The Borrower will not, and will not permit any of the Restricted Subsidiaries Subsidiaries, to make any Investment except:
(a) extensions of trade credit and asset purchases of assets and services (including purchases of inventory, supplies and materials) in the ordinary course of business;
(b) Investments in assets that were constituted Permitted Investments when at the time such Investments were made;
(c) loans and advances to officers, directors directors, employees and employees consultants of the Borrower (or any direct or indirect parent thereof) or any of its Restricted Subsidiaries (i) for reasonable and customary business-related travel, entertainment, relocation and analogous ordinary business purposes (including employee payroll advances), (ii) in connection with such Person’s purchase of Stock or Stock Equivalents of the Borrower (or any direct or indirect parent thereof); provided that, to the extent such loans and advances are made in cash, the amount of such loans and advances used to acquire such Stock or Stock Equivalents shall be contributed to the Borrower in cash cash) and (iii) for purposes not described in the foregoing subclauses (i) and (ii); provided that the aggregate principal amount outstanding pursuant to this subclause (iii) shall not exceed $10,000,00020,000,000;
(di) Investments existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Closing Date as set forth on Schedule 10.5, (ii) Investments existing on the Closing Date of the Borrower or any Subsidiary in any other Subsidiary and (iii) any extensions, renewals or reinvestments thereof, so long as the amount of any Investment made pursuant to this clause (d) is not increased at any time above the amount of such Investment existing on, or made pursuant to legally binding written commitments in existence on, the 2014 July Repricing Effective Dateset forth on Schedule 10.5;
(e) Investments received in connection with the bankruptcy or reorganization of suppliers or customers and in settlement of delinquent obligations of, and other disputes with, customers arising in the ordinary course of business or upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment;
(f) Investments to the extent that payment for such Investments is made with Stock or Stock Equivalents (other than Disqualified Stock not otherwise permitted by Section 10.1) of Holdingsthe Borrower (or any direct or indirect parent thereof);
(g) Investments (i) (a) by the Borrower or any Restricted Subsidiary in any Credit Party, (b) between or among Restricted Subsidiaries that are not Credit Parties, and (c) consisting of intercompany Investments incurred in the ordinary course of business in connection with the cash management operations (including with respect to intercompany self-insurance arrangements) among the Borrower and the Restricted Unrestricted Subsidiaries (provided that any no Event of Default shall then exist and, to the extent such intercompany Investment in connection with cash management arrangements by a Credit Party in a Subsidiary that is not a Credit Party is made in the form of an intercompany loan a transfer of assets other than cash or advance and the Borrower or such Restricted Subsidiary complies with Section 9.12 to the extent applicable)Permitted Investments, (ii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party, to the extent that the aggregate amount of all Investments made on or after the 2014 July Repricing Effective Date pursuant to this subclause (ii), when valued at the fair market value (determined by the Borrower acting in good faith) of each such Investment at the time each such Investment was made, would not exceed the sum of (x) $1,000,000,000, when taken together with Investments outstanding at such time in reliance on Section 10.5(i)(x) plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and Financial Performance Covenants on a pro forma basis after giving effect, on a Pro Forma Basis effect to the making of such Investment, the Applicable Amount at such time plus (z) the Applicable Equity Amount at such time and (iii) by Credit Parties in any Restricted Subsidiary that is not a Credit Party so long as such Investment is part of a series of simultaneous Investments by Restricted Subsidiaries in other Restricted Subsidiaries that result in covenants are recomputed as at the proceeds last day of the initial most recently ended Test Period as if such Investment being invested in one or more Credit Partieshad occurred on the first day of such Test Period);
(h) Investments constituting Permitted Acquisitions;
(i) Investments (including but not limited to (i) minority Investments Permitted Acquisitions and Investments in Unrestricted Subsidiaries, (ii) Investments in joint ventures (regardless respect of the form of legal entity) or similar Persons that do not constitute Restricted Subsidiaries, (iii) Investments in Merchant Acquisition royalty trusts and Processing Alliances (regardless of the form of legal entity) and (iv) Investments in Subsidiaries that are not Credit Partiesmaster limited partnerships), in each case valued at the fair market value Fair Market Value (determined by the Borrower acting in good faith) of such Investment at the time each such Investment is made, in an aggregate amount pursuant to this clause (iSection 10.5(h) that, at the time each such Investment is made, would not exceed the sum of (xA) the greater of (1) $1,000,000,000 when taken together with Investments outstanding at 125,000,000 and (2) 1.25% of Consolidated Total Assets (measured as of the date such time in reliance on Section 10.5(g)(ii)(xInvestment is made based upon the financial statements most recently available prior to such date) plus (yB) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis to the making of such Investment, the Applicable Equity Amount at such time plus (zC) without duplication to the extent not otherwise included in the determination of any amount that increased the JV Distribution Applicable Equity Amount, an amount equal to any repayments, interest, returns, profits, distributions, income and similar amounts actually received in cash in respect of any such Investment (which amount referred to in this subclause (z) shall not exceed the amount of such Investment valued at the fair market value Fair Market Value of such Investment at the time such Investment was made); provided that the foregoing limits shall not apply during the period in which, and Investments may be made pursuant to this Section 10.5(h) plus without limit at any such time during which, after giving pro forma effect to the making of any such Investment, (aa1) no Event of Default shall have occurred and be continuing and (2) Liquidity is not less than 10% of the Applicable Equity Amount then effective Loan Limit (on a pro forma basis after giving effect to such Investment); provided, further, that intercompany current liabilities incurred in the ordinary course of business and consistent with past practices, in connection with the cash management operations of the Borrower and the Subsidiaries shall not be included in calculating any limitations in this paragraph at such any time;
(ji) Investments constituting non-cash proceeds of Dispositions of assets to the extent such Disposition is permitted by Section 10.4;
(kj) Investments made to repurchase or retire Stock or Stock Equivalents of the Borrower or any direct or indirect parent thereof owned by any employee or any stock ownership plan or key employee stock ownership plan of the Borrower (or any direct or indirect parent thereof);
(lk) Investments consisting of dividends permitted under Section 10.6[Intentionally Omitted];
(ml) loans and advances to any direct or indirect parent of the Borrower in lieu of, and not in excess of the amount of, dividends Restricted Payments to the extent permitted to be made to such parent in accordance with Section 10.6;
(nm) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors and other credits to suppliers in the ordinary course of business;
(on) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers consistent with past practices;
(po) advances of payroll payments to employees employees, consultants or independent contractors or other advances of salaries or compensation to employees, consultants or independent contractors, in each case in the ordinary course of business;
(qp) Guarantee Obligations guarantee obligations of the Borrower or any Restricted Subsidiary of leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case entered into in the ordinary course of business;
(rq) Investments held by a Person acquired (including by way of merger or consolidation) after the Original Closing Date otherwise in accordance with this Section 10.5 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger or consolidation and were in existence on the date of such acquisition, merger or consolidation;
(r) Investments in Industry Investments and in interests in additional Oil and Gas Properties and gas gathering systems related thereto or Investments related to farm-out, farm-in, joint operating, joint venture, joint development or other area of mutual interest agreements, other similar industry investments, gathering systems, pipelines or other similar oil and gas exploration and production business arrangements whether through direct ownership or ownership through a joint venture or similar arrangement;
(s) [Intentionally Omitted];
(t) Investments in Hedge Agreements permitted by Section 10.1;
(t) Investments arising out of or in connection with any Permitted Receivables Financing10.1 and Section 10.10;
(u) Investments in the ordinary course consisting of business in connection with Settlements;
Indebtedness, fundamental changes, Dispositions and Restricted Payments permitted under Sections 10.1, 10.3, 10.4 and 10.6 (v) other Investments, that, at the time each such Investment is made, would not exceed the sum of (x) $750,000,000 plus (y) if the Borrower shall be in compliance with the Senior Secured Leverage Test, both before and after giving effect, on a Pro Forma Basis, to the making of such Investment, the Applicable Amount plus (z) the Applicable Equity Amount at such time;
(w) Investments in connection with any transaction permitted by Section 10.3than 10.6(c)); and
(xv) Investments consisting of licensing of intellectual property pursuant to joint marketing arrangements with other Persons in the ordinary course of business;
(y) Investments constituting contributions or other dispositions of any Foreign Subsidiary to another Foreign Subsidiary; and
(z) Investments by any Credit Party in any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed the fair market value of all dividends and other distributions received by Credit Parties from Restricted Subsidiaries that are not Credit Parties since the Initial Effectiveness Date.
Appears in 1 contract
