Limitations on Loans, Advances, Investments and Acquisitions. Purchase, own, invest in or otherwise acquire, directly or indirectly, any Capital Stock, interests in any partnership or joint venture (including, without limitation, the creation or capitalization of [Second Amendment – SCP Pool Corporation] 85 any Subsidiary), evidence of Indebtedness or other obligation or security, substantially all or a portion of the business or assets of any other Person or any other investment or interest whatsoever in any other Person, or make or permit to exist, directly or indirectly, any loans, advances or extensions of credit to, or any investment in cash or by delivery of property in, any Person except: (a) (i) investments existing on the Closing Date in Subsidiaries, and (ii) the other loans, advances and investments existing on the Closing Date which are described on Schedule 10.3; (b) investments in (i) marketable direct obligations issued or unconditionally guaranteed by the United States or any agency thereof maturing within one hundred twenty (120) days from the date of acquisition thereof, (ii) commercial paper maturing no more than one hundred twenty (120) days from the date of creation thereof and currently having the highest rating obtainable from either Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. or Xxxxx’x Investors Service, Inc., (iii) certificates of deposit maturing no more than one hundred twenty (120) days from the date of creation thereof issued by commercial banks incorporated under the laws of the United States, each having combined capital, surplus and undivided profits of not less than $500,000,000 and having a rating of “A” or better by a nationally recognized rating agency; provided, that the aggregate amount invested in such certificates of deposit shall not at any time exceed $5,000,000 for any one such certificate of deposit and $10,000,000 for any one such bank, (iv) time deposits maturing no more than thirty (30) days from the date of creation thereof with commercial banks or savings banks or savings and loan associations each having membership either in the FDIC or the deposits of which are insured by the FDIC and in amounts not exceeding the maximum amounts of insurance thereunder or (v) demand deposit accounts maintained in the ordinary course of business; (c) investments by the US Borrower or any Subsidiary thereof in the form of acquisitions of all or substantially all of the business or a line of business (whether by the acquisition of Capital Stock, assets or any combination thereof) of any other Person if each such acquisition meets all of the following requirements (such acquisition being referred to herein as a “Permitted Domestic Acquisition”): (i) the Person to be acquired shall be organized under the laws of the United States of America, or the assets to be acquired shall be located in the continental United States of America, and such Person shall be engaged in a business, or such assets shall be used in a business, permitted pursuant to Section 10.12; (ii) the US Borrower or any Subsidiary (including any entity being acquired that becomes a Subsidiary) shall be the surviving Person and no Change of Control shall have been effected thereby; (iii) the Person to be acquired shall not be subject to any material pending litigation which could reasonably be expected to have a Material Adverse Effect; [Second Amendment – SCP Pool Corporation] 86 (iv) prior to the closing of such acquisition, the acquisition is approved by the board of directors (or a majority of the holders of the Capital Stock of such Person) of the Person whose assets or Capital Stock are being acquired pursuant to such acquisition; (v) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such proposed acquisition; (vi) if the aggregate amount of Permitted Acquisition Consideration payable in cash with respect to such proposed acquisition or series of related acquisitions exceeds $50,000,000, the US Borrower shall have (A) demonstrated to the Administrative Agent pro forma compliance (as of the date of the proposed acquisition and after giving effect thereto and any Extensions of Credit made or to be made in connection therewith) with each covenant contained in, and in the manner set forth in, Article IX, (B) delivered to the Administrative Agent evidence of the approval referred to in clause (iv) above, and (C) delivered written notice of such proposed acquisition to the Administrative Agent and the Lenders, which notice shall include the proposed closing date of such proposed acquisition and a description of the acquisition in the form customarily prepared by the US Borrower, not less than five (5) Business Days prior to such proposed closing date; and (vii) the US Borrower shall have delivered to the Administrative Agent such documents reasonably requested by the Administrative Agent or the Required Lenders (through the Administrative Agent) pursuant to Section 8.11 to be delivered at the time required pursuant to Section 8.11. (d) investments by the US Borrower or any Subsidiary thereof in the form of acquisitions of all or substantially all of the business or a line of business (whether by the acquisition of Capital Stock, assets or any combination thereof) of any other Person if each such acquisition meets all of the following requirements (such acquisition being referred to herein as a “Permitted Foreign Acquisition”): (i) the Person to be acquired shall be organized under the laws of a jurisdiction other than the United States of America, or the assets to be acquired shall be located outside of the continental United States of America, and such Person shall be engaged in a business, or such assets shall be used in a business, permitted pursuant to Section 10.12; (ii) the US Borrower or any Subsidiary (including any entity being acquired that becomes a Subsidiary) shall be the surviving Person and no Change of Control shall have been effected thereby; (iii) the Person to be acquired shall not be subject to any material pending litigation which could reasonably be expected to have a Material Adverse Effect; [Second Amendment – SCP Pool Corporation] 87 (iv) prior to the closing of such acquisition, the acquisition is approved by the board of directors (or a majority of the holders of the Capital Stock of such Person) of the Person whose assets or Capital Stock are being acquired pursuant to such acquisition; (v) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such proposed acquisition; (vi) the aggregate amount of Permitted Acquisition Consideration payable (A) with respect to any Permitted Foreign Acquisition or series of related Permitted Foreign Acquisitions does not exceed $35,000,000 in cash and (B) with respect to all Permitted Foreign Acquisitions and the total amount of any transactions permitted under Sections 10.1(i), 10.3(i) and 10.5(f) does not exceed $75,000,000 in the aggregate during the term of this Agreement; and (vii) if the aggregate amount of Permitted Acquisition Consideration payable in cash with respect to such proposed acquisition or series of related acquisitions exceeds $20,000,000, the US Borrower shall have (A) demonstrated to the Administrative Agent pro forma compliance (as of the date of the proposed acquisition and after giving effect thereto and any Extensions of Credit made or to be made in connection therewith) with each covenant contained in, and in the manner set forth in, Article IX, (B) delivered to the Administrative Agent evidence of the approval referred to in clause (iv) above, and (C) delivered written notice of such proposed acquisition to the Administrative Agent and the Lenders, which notice shall include the proposed closing date of such proposed acquisition and a description of the acquisition in the form customarily prepared by the US Borrower, not less than five (5) Business Days prior to such proposed closing date. (e) Hedging Agreements permitted pursuant to Section 10.1; (f) purchases of assets in the ordinary course of business; (g) investments in the form of loans and advances to employees in the ordinary course of business, which, in the aggregate, do not exceed at any time $500,000; (h) intercompany Indebtedness permitted pursuant to Section 10.1(h); (i) the creation of new Foreign Subsidiaries, the investment in which, together with the Permitted Acquisition Consideration payable in connection with all Permitted Foreign Acquisitions and the total amount of any transactions permitted under Sections 10.1(i) and 10.5(f), does not exceed $75,000,000 in the aggregate during the term of this Agreement; (j) the creation of Domestic Subsidiaries after the Closing Date so long as (i) each such Domestic Subsidiary shall comply with Section 8.11 and (ii) the creation of such Domestic Subsidiary is otherwise made in accordance with the terms and conditions of this Agreement (including, without limitation, this Section 10.3); (k) equity investments (i) by the US Borrower in any Subsidiary Guarantor, (ii) by any Subsidiary in the US Borrower, (iii) by any Subsidiary in any Subsidiary Guarantor or (iv) by any Subsidiary that is not a Subsidiary Guarantor in any other Subsidiary that is not a Subsidiary Guarantor; (l) so long as no Default or Event of Default has occurred or would result therefrom, the initial investment by the US Borrower and its Subsidiaries in a proposed joint venture previously described to the Administrative Agent in an aggregate amount not to exceed the lesser of (A) $40,000,000 or (B) the aggregate amount reasonably determined by the US Borrower and its Subsidiaries as necessary to initially capitalize such joint venture; (m) other additional domestic investments not otherwise permitted pursuant to this Section not exceeding $7,500,000 in the aggregate in any Fiscal Year; and (n) so long as no Default or Event of Default has occurred or would result therefrom, the contribution by Pool Development LLC, a wholly-owned Subsidiary of the US Borrower, to the capital of Northpark Corporate Center, L.L.C., a Louisiana limited liability company, in an aggregate amount not to exceed $4,000,000 in exchange for a fifty percent (50%) ownership interest in Northpark Corporate Center, L.L.C.
Appears in 1 contract
Limitations on Loans, Advances, Investments and Acquisitions. Purchase, own, invest in or otherwise acquire, directly or indirectly, any Capital Stock, interests in any partnership or joint venture (including, including without limitation, limitation the creation or capitalization of [Second Amendment – SCP Pool Corporation] 85 any Subsidiary), evidence of Indebtedness Debt or other obligation or security, substantially all or a portion of the business or assets of any other Person or any other investment or interest whatsoever in any other Person, or make or permit to exist, directly or indirectly, any loans, advances or extensions of credit to, or any investment in cash or by delivery of property in, any Person Person, or enter into, directly or indirectly, any commitment or option in respect of the foregoing except:
(a) (i) investments in Subsidiaries existing on the Closing Date in Subsidiaries, and (ii) the other existing loans, advances and investments existing on the Closing Date which are described on Schedule 10.3SCHEDULE 8.3;
(b) investments in (i) marketable direct obligations issued or unconditionally guaranteed by the United States of America or any agency thereof maturing within one hundred twenty (120) 120 days from the date of acquisition thereof, (ii) commercial paper maturing no more than one hundred twenty (120) 120 days from the date of creation thereof and currently having the highest a rating obtainable of "A" or better from either Standard & Poor’s 's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. ("S&P") or Xxxxx’x of "P" or better from Xxxxx'x Investors Service, Inc.Inc. ("Xxxxx'x"), (iii) money market deposits maintained with brokerage firms having an investment grade rating from S&P and Xxxxx'x; (iv) certificates of deposit maturing no more than one hundred twenty (120) 120 days from the date of creation thereof issued by commercial banks incorporated under the laws of the United StatesStates of America, each having combined capital, surplus and undivided profits of not less than $500,000,000 and having a rating of “"A” " or better by a nationally recognized rating agency; provided, that the aggregate amount invested in such certificates of deposit shall not at any time exceed $5,000,000 for any one such certificate of deposit and $10,000,000 for any one such bank, or (ivv) time deposits maturing no more than thirty (30) 30 days from the date of creation thereof with commercial banks or savings banks or savings and loan associations each having membership either in the FDIC or associations, the deposits of which are insured by the FDIC Federal Deposit Insurance Corporation and in amounts not exceeding the maximum amounts of insurance thereunder or (v) demand deposit accounts maintained in the ordinary course of businessthereunder;
(c) investments made by the US Borrower or any Subsidiary thereof (i) in any guarantor of the form Obligations hereunder or (ii) in any Subsidiary which is not a Guarantor provided that the aggregate amount of investments made pursuant to this clause (ii) does not exceed $1,500,000; and
(d) acquisitions by Borrower of the business or all or substantially all of the business stock or a line assets of business (any Person, or any division of any Person, whether by the acquisition through purchase of Capital Stock, assets purchase of assets, merger or any combination thereof) of any other Person if each such acquisition meets all of the following requirements (such acquisition being referred to herein as a “Permitted Domestic Acquisition”):
otherwise; PROVIDED, HOWEVER, that (i) the Person giving effect to be acquired shall be organized under the laws of the United States of America, or the assets to be acquired shall be located in the continental United States of America, and such Person shall be engaged in a business, or such assets shall be used in a business, permitted pursuant to Section 10.12;
(ii) the US Borrower or any Subsidiary (including any entity being acquired that becomes a Subsidiary) shall be the surviving Person and no Change of Control shall have been effected thereby;
(iii) the Person to be acquired shall not be subject to any material pending litigation which could reasonably be expected to have a Material Adverse Effect; [Second Amendment – SCP Pool Corporation] 86
(iv) prior to the closing of such acquisition, the acquisition is approved by the board of directors (or a majority of the holders of the Capital Stock of such Person) of the Person whose assets or Capital Stock are being acquired pursuant to such acquisition;
(v) there would exist no Default or Event of Default shall have occurred hereunder and be continuing both before Borrower and after giving effect to such proposed acquisition;
(vi) if the aggregate amount of Permitted Acquisition Consideration payable its Subsidiaries are in cash with respect to such proposed acquisition or series of related acquisitions exceeds $50,000,000compliance, the US Borrower shall have (A) demonstrated to the Administrative Agent on a pro forma compliance (as of the date of the proposed acquisition basis, with Sections 7.13 and after giving effect thereto and any Extensions of Credit made or to be made in connection therewith) with each covenant contained in, and in the manner set forth in, Article IX, (B) delivered to the Administrative Agent evidence of the approval referred to in clause (iv) above, 7.14 hereof and (Cii) delivered written notice of such proposed acquisition to the Administrative Agent and the Lenders, which notice shall include the proposed closing date of such proposed acquisition and a description of the acquisition in the form customarily prepared by the US Borrower, not less than five (5) Business Days prior to such proposed closing date; and
(vii) the US Borrower shall have delivered to Lender an Officer's Compliance Certificate, prepared on a pro forma basis, demonstrating the Administrative Agent such documents reasonably requested by the Administrative Agent or the Required Lenders (through the Administrative Agent) pursuant to Section 8.11 to be delivered at the time required pursuant to Section 8.11.
(d) investments by the US Borrower or any Subsidiary thereof in the form of acquisitions of all or substantially all satisfaction of the business or a line of business (whether by the acquisition of Capital Stock, assets or any combination thereof) of any other Person if each such acquisition meets all of the following requirements (such acquisition being referred to herein as a “Permitted Foreign Acquisition”):
condition set forth in clause (i) the Person to be acquired shall be organized under the laws of a jurisdiction other than the United States of America, or the assets to be acquired shall be located outside of the continental United States of America, and such Person shall be engaged in a business, or such assets shall be used in a business, permitted pursuant to Section 10.12;
(ii) the US Borrower or any Subsidiary (including any entity being acquired that becomes a Subsidiary) shall be the surviving Person and no Change of Control shall have been effected thereby;
(iii) the Person to be acquired shall not be subject to any material pending litigation which could reasonably be expected to have a Material Adverse Effect; [Second Amendment – SCP Pool Corporation] 87
(iv) prior to the closing of such acquisition, the acquisition is approved by the board of directors (or a majority of the holders of the Capital Stock of such Person) of the Person whose assets or Capital Stock are being acquired pursuant to such acquisition;
(v) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such proposed acquisition;
(vi) the aggregate amount of Permitted Acquisition Consideration payable (A) with respect to any Permitted Foreign Acquisition or series of related Permitted Foreign Acquisitions does not exceed $35,000,000 in cash and (B) with respect to all Permitted Foreign Acquisitions and the total amount of any transactions permitted under Sections 10.1(i), 10.3(i) and 10.5(f) does not exceed $75,000,000 in the aggregate during the term of this Agreement; and
(vii) if the aggregate amount of Permitted Acquisition Consideration payable in cash with respect to such proposed acquisition or series of related acquisitions exceeds $20,000,000, the US Borrower shall have (A) demonstrated to the Administrative Agent pro forma compliance (as of the date of the proposed acquisition and after giving effect thereto and any Extensions of Credit made or to be made in connection therewith) with each covenant contained in, and in the manner set forth in, Article IX, (B) delivered to the Administrative Agent evidence of the approval referred to in clause (iv) above, and (C) delivered written notice of such proposed acquisition to the Administrative Agent and the Lenders, which notice shall include the proposed closing date of such proposed acquisition and a description of the acquisition in the form customarily prepared by the US Borrower, not less than five (5) Business Days prior to such proposed closing datehereof.
(e) Hedging Agreements permitted pursuant to Section 10.1;
(f) purchases of assets in the ordinary course of business;
(g) investments in the form of loans and advances to employees in the ordinary course of business, which, in the aggregate, do not exceed at any time $500,000;
(h) intercompany Indebtedness permitted pursuant to Section 10.1(h);
(i) the creation of new Foreign Subsidiaries, the investment in which, together with the Permitted Acquisition Consideration payable in connection with all Permitted Foreign Acquisitions and the total amount of any transactions permitted under Sections 10.1(i) and 10.5(f), does not exceed $75,000,000 in the aggregate during the term of this Agreement;
(j) the creation of Domestic Subsidiaries after the Closing Date so long as (i) each such Domestic Subsidiary shall comply with Section 8.11 and (ii) the creation of such Domestic Subsidiary is otherwise made in accordance with the terms and conditions of this Agreement (including, without limitation, this Section 10.3);
(k) equity investments (i) by the US Borrower in any Subsidiary Guarantor, (ii) by any Subsidiary in the US Borrower, (iii) by any Subsidiary in any Subsidiary Guarantor or (iv) by any Subsidiary that is not a Subsidiary Guarantor in any other Subsidiary that is not a Subsidiary Guarantor;
(l) so long as no Default or Event of Default has occurred or would result therefrom, the initial investment by the US Borrower and its Subsidiaries in a proposed joint venture previously described to the Administrative Agent in an aggregate amount not to exceed the lesser of (A) $40,000,000 or (B) the aggregate amount reasonably determined by the US Borrower and its Subsidiaries as necessary to initially capitalize such joint venture;
(m) other additional domestic investments not otherwise permitted pursuant to this Section not exceeding $7,500,000 in the aggregate in any Fiscal Year; and
(n) so long as no Default or Event of Default has occurred or would result therefrom, the contribution by Pool Development LLC, a wholly-owned Subsidiary of the US Borrower, to the capital of Northpark Corporate Center, L.L.C., a Louisiana limited liability company, in an aggregate amount not to exceed $4,000,000 in exchange for a fifty percent (50%) ownership interest in Northpark Corporate Center, L.L.C.
Appears in 1 contract
Limitations on Loans, Advances, Investments and Acquisitions. Purchase, own, invest in or otherwise acquire, directly or indirectly, any Capital Stockcapital stock, interests in any partnership or joint venture (including, without limitation, the creation or capitalization of [Second Amendment – SCP Pool Corporation] 85 any Restricted Subsidiary), evidence of Indebtedness Debt or other obligation or security, substantially all or a portion of the business or assets of any other Person or any other investment or interest whatsoever in any other Person, or make or permit to exist, directly or indirectly, any loans, advances or extensions of credit to, or any investment in cash or by delivery of property in, any Person except:
(a) (i) investments in Restricted Subsidiaries existing on the Amendment and Restatement Closing Date, (ii) investments in Restricted Subsidiaries formed or acquired after the Amendment and Restatement Closing Date in Subsidiaries, so long as the Borrower and its Restricted Subsidiaries comply with the applicable provisions of Section 9.11 and Section 11.3(d) and (iiiii) the other loans, advances and investments described on Schedule 11.3 existing on the Amendment and Restatement Closing Date which are described on Schedule 10.3Date;
(b) investments in (i) marketable direct obligations issued or unconditionally guaranteed by the United States of America or any agency thereof maturing within one hundred twenty (120) days from the date of acquisition thereof, (ii) commercial paper maturing no more than one hundred twenty (120) days from the date of creation thereof and currently having the highest rating obtainable from either Standard & Poor’s 's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. Inc., or Xxxxx’x Xxxxx'x Investors Service, Inc., (iii) certificates of deposit maturing no more than one hundred twenty (120) days from the date of creation thereof issued by commercial banks incorporated under the laws of the United StatesStates of America, each having combined capital, surplus and undivided profits of not less than $500,000,000 and having a rating of “"A” " or better by a nationally recognized rating agency; provided, that the aggregate amount invested in such certificates of deposit shall not at any time exceed $5,000,000 for any one such certificate of deposit and $10,000,000 for any one such bank, (iv) time deposits maturing no more than thirty (30) days from the date of creation thereof with commercial banks or savings banks or savings and loan associations each having membership either in the FDIC or the deposits of which are insured by the FDIC and in amounts not exceeding the maximum amounts of insurance thereunder or thereunder; and (v) demand deposit accounts maintained repurchase agreements with a Lender or a bank or trust company or a recognized securities dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the ordinary course United States of businessAmerica (such investments described in items (i) through (v) above, "Cash Equivalents");
(c) the Paravant Acquisition; provided, that the Paravant Merger shall be subject to the conditions set forth in Section 11.4(d);
(d) investments by the US Borrower or any Restricted Subsidiary thereof in the form of acquisitions of all or substantially all of the business or a line of business (whether by the acquisition of Capital Stockcapital stock, assets or any combination thereof) of any other Person if each such acquisition meets all of the following requirements (such acquisition being referred to herein as a “acquisitions being, "Permitted Domestic Acquisition”Acquisitions"):
(i) the Person to be acquired shall be organized under the laws of the United States of America, or the assets to be acquired shall be located in the continental United States of America, and such Person shall be engaged in a business, or such assets shall be used in a business, permitted pursuant to Section 10.12;substantially similar line of business as the Borrower,
(ii) evidence of approval of the US acquisition by the acquiree's board of directors or equivalent governing body or a copy of the opinion of counsel delivered by legal counsel to the acquiree in connection with the acquisition which evidences such approval shall be delivered to the Administrative Agent at the time the documents referred to in clause (vi) of this Section 11.3(d) are required to be delivered;
(iii) a description of the acquisition in the form customarily prepared by the Borrower shall have been delivered to the Administrative Agent and the Lenders prior to the consummation of the acquisition;
(iv) the Borrower or any Restricted Subsidiary (including any entity being acquired that becomes a Subsidiary) shall be the surviving Person and no Change of Control shall have been effected thereby;
(iiiv) the Person to be acquired shall not be subject to any material pending litigation which could reasonably be expected to have a Material Adverse Effect; [Second Amendment – SCP Pool Corporation] 86
(iv) prior to the closing of such acquisition, the acquisition is approved by the board of directors (or a majority of the holders of the Capital Stock of such Person) of the Person whose assets or Capital Stock are being acquired pursuant to such acquisition;
(v) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such proposed acquisition;
(vi) if the aggregate amount of Permitted Acquisition Consideration payable in cash with respect to such proposed acquisition or series of related acquisitions exceeds $50,000,000, the US Borrower shall have (A) demonstrated to the Administrative Agent (A) pro forma compliance (as of the date of the proposed acquisition and after giving effect thereto and any Extensions of Credit made or to be made in connection therewith) with each covenant contained in, in and in the manner set forth in, Article IXX, (B) delivered to the Administrative Agent evidence a pro forma Asset Coverage Ratio (as of the approval referred date of the proposed acquisition and after giving effect thereto and any Extensions of Credit made or to be made in clause (ivconnection therewith) aboveequal to or exceeding 1.00 to 1.00, and (C) delivered written notice maintenance of such proposed acquisition at least $30,000,000 of availability under the Revolving Credit Facility both before and after giving effect to the Administrative Agent proposed acquisition; and (D) a pro forma Adjusted Leverage Ratio (as of the Lenders, which notice shall include the proposed closing date of such the proposed acquisition and a description after giving effect thereto and any Extensions of Credit made or to be made in connection therewith) at least 0.25 below the acquisition applicable ratio set forth in Section 10.1, and no Default or Event of Default shall have occurred and be continuing both before and after giving effect to the form customarily prepared by the US Borrower, not less than five (5) Business Days prior to such proposed closing date; andacquisition;
(viivi) the US Borrower shall have delivered to the Administrative Agent such documents reasonably requested by the Administrative Agent or the Required Lenders (through the Administrative Agent) pursuant to Section 8.11 9.11 to be delivered at the time required pursuant to Section 8.11.
(d) investments 9.11 confirming that such Person is or will be a Subsidiary Guarantor hereunder, and its Subsidiary Guaranteed Obligations incurred in such capacity are secured by the US Security Documents, said documents to include a favorable opinion of counsel to the Borrower or any Subsidiary thereof in acceptable to the form of acquisitions of all or substantially all of Administrative Agent addressed to the business or a line of business (whether by Administrative Agent and the acquisition of Capital StockLenders with respect to the Borrower, assets or any combination thereof) of any other Person if each such acquisition meets all of the following requirements (such acquisition being referred to herein as a “Permitted Foreign Acquisition”):
(i) the Person to be acquired shall be organized under and the laws of a jurisdiction other than acquisition in form and substance reasonably acceptable to the United States of America, or the assets to be acquired shall be located outside of the continental United States of America, and such Person shall be engaged in a business, or such assets shall be used in a business, permitted pursuant to Section 10.12Administrative Agent;
(ii) the US Borrower or any Subsidiary (including any entity being acquired that becomes a Subsidiary) shall be the surviving Person and no Change of Control shall have been effected thereby;
(iii) the Person to be acquired shall not be subject to any material pending litigation which could reasonably be expected to have a Material Adverse Effect; [Second Amendment – SCP Pool Corporation] 87
(iv) prior to the closing of such acquisition, the acquisition is approved by the board of directors (or a majority of the holders of the Capital Stock of such Person) of the Person whose assets or Capital Stock are being acquired pursuant to such acquisition;
(v) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such proposed acquisition;
(vivii) the aggregate amount of Permitted Acquisition Consideration payable (A) for any such acquisition (or series of related acquisitions) shall not exceed $75,000,000 payable in cash, Cash Equivalents or Debt and (B) for such acquisition, together with all other acquisitions consummated in the twelve-month period ending on the date of such acquisition shall not exceed $125,000,000 in the aggregate, regardless of the form of such Permitted Acquisition Consideration; provided that any Permitted Acquisition Consideration paid with respect to any Permitted Foreign Acquisition or series of related Permitted Foreign Acquisitions does acquisition consummated prior to the Amendment and Restatement Closing Date shall not exceed count toward such $35,000,000 in cash and (B) with respect to all Permitted Foreign Acquisitions and the total amount of any transactions permitted under Sections 10.1(i), 10.3(i) and 10.5(f) does not exceed $75,000,000 in the aggregate during the term of this Agreement; and125,000,000 limit;
(viiviii) if the aggregate amount of Permitted Acquisition Consideration payable in cash with respect Person to such proposed acquisition or series of related acquisitions exceeds $20,000,000be acquired shall demonstrate positive EBITDA for the most recent twelve (12) month period then ended, the US Borrower shall have (A) demonstrated both prior to the Administrative Agent pro forma compliance (as of the date of the proposed acquisition and after giving effect thereto and any Extensions of Credit made or to be made in connection therewith) with each covenant contained inthereto, and in the manner set forth in, Article IX, (B) delivered to by providing the Administrative Agent evidence and Lenders copies of the approval referred to most recent financial statements and projections, all in clause (iv) above, form and (C) delivered written notice of such proposed acquisition substance reasonably satisfactory to the Administrative Agent and Lenders; and
(ix) the Lenders, which notice Borrower shall include provide such other documents and other information as may be reasonably requested by the Administrative Agent or the Required Lenders (through the Administrative Agent) in connection with the proposed closing date of such proposed acquisition and a description of the acquisition in the form customarily prepared by the US Borrower, not less than five (5) Business Days prior to such proposed closing date.acquisition;
(e) Hedging Agreements permitted pursuant to Section 10.111.1;
(f) loans or advances made by the Borrower to any Restricted Subsidiary and made by any Subsidiary to the Borrower or any other Subsidiary; provided that any such loans and advances made by a Borrower or any Restricted Subsidiary that are evidenced by a promissory note or other instrument shall be pledged pursuant to the Collateral Agreement;
(g) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(h) investments made after the Amendment and Restatement Closing Date in joint ventures and other business entities (in each case that are not Subsidiaries of the Borrower) that are engaged in the same line or lines of business as the Borrower and its Restricted Subsidiaries in an aggregate amount not to exceed $5,000,000;
(i) loans to employees of the Borrower and the Restricted Subsidiaries in their capacity as such, in an aggregate principal amount not to exceed $1,000,000 at any time outstanding;
(j) any investment received as consideration, in whole or in part, for any asset sale otherwise permitted hereunder in an aggregate principal amount not to exceed $5,000,000; provided, that the promissory note issued to DRS Data Systems, Inc. in connection with the sale of certain assets thereof in an original principal amount of approximately $2,813,000 shall not be applied to reduce such $5,000,000 basket; and
(k) purchases of assets in the ordinary course of business;
(g) investments in the form of loans and advances to employees in the ordinary course of business, which, in the aggregate, do not exceed at any time $500,000;
(h) intercompany Indebtedness permitted pursuant to Section 10.1(h);
(i) the creation of new Foreign Subsidiaries, the investment in which, together with the Permitted Acquisition Consideration payable in connection with all Permitted Foreign Acquisitions and the total amount of any transactions permitted under Sections 10.1(i) and 10.5(f), does not exceed $75,000,000 in the aggregate during the term of this Agreement;
(j) the creation of Domestic Subsidiaries after the Closing Date so long as (i) each such Domestic Subsidiary shall comply with Section 8.11 and (ii) the creation of such Domestic Subsidiary is otherwise made in accordance with the terms and conditions of this Agreement (including, without limitation, this Section 10.3);
(k) equity investments (i) by the US Borrower in any Subsidiary Guarantor, (ii) by any Subsidiary in the US Borrower, (iii) by any Subsidiary in any Subsidiary Guarantor or (iv) by any Subsidiary that is not a Subsidiary Guarantor in any other Subsidiary that is not a Subsidiary Guarantor;
(l) so long as no Default or Event of Default has occurred or would result therefrom, the initial investment by the US Borrower and its Subsidiaries in a proposed joint venture previously described to the Administrative Agent in an aggregate amount not to exceed the lesser of (A) $40,000,000 or (B) the aggregate amount reasonably determined by the US Borrower and its Subsidiaries as necessary to initially capitalize such joint venture;
(m) other additional domestic investments not otherwise permitted pursuant to this Section not exceeding $7,500,000 in the aggregate in any Fiscal Year; and
(n) so long as no Default or Event of Default has occurred or would result therefrom, the contribution by Pool Development LLC, a wholly-owned Subsidiary of the US Borrower, to the capital of Northpark Corporate Center, L.L.C., a Louisiana limited liability company, in an aggregate amount not to exceed $4,000,000 in exchange for a fifty percent (50%) ownership interest in Northpark Corporate Center, L.L.C..
Appears in 1 contract
Limitations on Loans, Advances, Investments and Acquisitions. Purchase, own, invest in or otherwise acquire, directly or indirectly, any Capital Stockcapital stock, interests in any partnership or joint venture (including, including without limitation, limitation the creation or capitalization of [Second Amendment – SCP Pool Corporation] 85 any Subsidiary), evidence of Indebtedness Debt or other obligation or security, substantially all or a portion of the business or assets of any other Person or any other investment or interest whatsoever in any other Person, or make or permit to exist, directly or indirectly, any loans, advances or extensions of credit to, or any investment in cash or by delivery of property in, any Person except:
(a) (i) investments existing on the Closing Date in SubsidiariesBorrowers, (ii) investments in Subsidiaries which are not Borrowers in an aggregate amount not to exceed $500,000 at any time, and (iiiii) the other existing loans, advances and investments existing on the Closing Date which are not otherwise referred to in this Section 11.4 described on Schedule 10.3;11.4; -------------
(b) investments in (i) marketable direct obligations issued or unconditionally guaranteed by the United States of America or any agency thereof maturing within one hundred twenty (120) 120 days from the date of acquisition thereof, (ii) commercial paper maturing no more than one hundred twenty (120) 120 days from the date of creation thereof and currently having the highest rating obtainable from either Standard & Poor’s 's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. or Xxxxx’x Xxxxx'x Investors Service, Inc., (iii) certificates of deposit maturing no more than one hundred twenty (120) 120 days from the date of creation thereof issued by commercial banks incorporated under the laws of the United StatesXxxxxx Xxxxxx xx Xxxxxxx, each having combined capital, surplus and undivided profits of not less than $500,000,000 and having a rating of “"A” " or better by a nationally recognized rating agency; provided, that the aggregate amount -------- invested in such certificates of deposit shall not at any time exceed $5,000,000 for any one such certificate of deposit and $10,000,000 for any one such bank, or (iv) time deposits maturing no more than thirty (30) 30 days from the date of creation thereof with commercial banks or savings banks or savings and loan associations each having membership either in the FDIC or the deposits of which are insured by the FDIC and in amounts not exceeding the maximum amounts of insurance thereunder or (vany such investment, a "Cash Equivalent");
(c) demand deposit accounts maintained loans and advances to employees in the ordinary course of businessbusiness in an aggregate amount not to exceed $750,000 at any time;
(cd) intercompany loans and advances in connection with intercompany Debt permitted under Section 11.1(g) hereof; and
(e) investments by the US Borrower Company or any Subsidiary thereof in the form of acquisitions of all or substantially all of the business or a line of business (whether by the acquisition of Capital Stockcapital stock, assets or any combination thereof) of any other Person if each such acquisition meets all of the following requirements (such acquisition being referred to herein as a “Permitted Domestic Acquisition”):
Person; provided that (i) the Person to be acquired shall be organized under the laws of the United States of America, engage in -------- a business or the assets to be acquired shall be located in the continental United States of America, and such Person shall be engaged in a business, or such assets shall be used in a businessbusiness described in Section 9.10 hereof, permitted pursuant to Section 10.12;
(ii) the US a Borrower or any Subsidiary (including any entity being acquired that becomes a Subsidiary) thereof shall be the surviving Person and no Change of in Control shall have been effected thereby;
, (iii) the Person to be acquired shall not be subject to any material pending litigation which could reasonably be expected to have a Material Adverse Effect; [Second Amendment – SCP Pool Corporation] 86
(iv) prior to the closing of such acquisition, the acquisition is approved by the board of directors (or a majority of the holders of the Capital Stock of such Person) of the Person whose assets or Capital Stock are being acquired pursuant to such acquisition;
(v) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to the acquisition, (iv) the Borrowers shall have obtained the prior written consent of the Required Lenders prior to the consummation of such proposed acquisition if the cash portion of the Permitted Acquisition Value of such acquisition exceeds $25,000,000 or the aggregate Permitted Acquisition Value of such acquisition exceeds $50,000,000 (to the extent that such consent is required to be provided hereby and to the extent the Borrowers comply with all applicable provisions of paragraph (C) below, such written consent, or written notice (or verbal notice subsequently confirmed in writing) that such consent shall not be given by the Required Lenders, to be delivered to the Company no later than five (5) Business Days after receipt by the Lenders of such information), and (v) the Borrowers must comply with the following requirements:
(A) with respect to any such investment for which the prior written consent of the Required Lenders is not required and the Person surviving such acquisition is a not a Material Subsidiary, the Borrowers must comply with the following additional requirements:
(1) the Borrowers shall have delivered to the Administrative Agent an Officer's Compliance Certificate dated as of the closing date of the acquisition demonstrating, in form and substance reasonably satisfactory thereto, (I) pro forma --- ----- compliance with each covenant contained in Articles X and XI and (II) that the Person to be acquired shall have positive pro forma cash flow;
(2) the Borrowers shall have delivered to the Administrative Agent on or before the closing date of the acquisition a description of the acquisition (including, without limitation, a description of the Person or assets to be acquired, the purchase price, the manner of acquisition, the payment structure and any other terms and conditions reasonably required by the Administrative Agent); and
(3) the Borrowers shall have delivered to the Administrative Agent such other documents reasonably requested by the Administrative Agent in connection with such acquisition;
(viB) if the aggregate amount of Permitted Acquisition Consideration payable in cash with respect to any such proposed investment for which the prior written consent of the Required Lenders is not required and the Person surviving such acquisition or series of related acquisitions exceeds $50,000,000is a Material Subsidiary, the US Borrower Borrowers must comply with the following additional requirements:
(1) the Borrowers shall have (A) demonstrated delivered to the Administrative Agent pro forma compliance (an Officer's Compliance Certificate dated as of the closing date of the proposed acquisition demonstrating, in form and after giving effect thereto and any Extensions of Credit made or to be made in connection therewithsubstance reasonably satisfactory thereto, (I) pro forma --- ----- compliance with each covenant contained inin Articles X and XI and (II) that the Person to be acquired shall have positive pro forma cash flow;
(2) the Borrowers shall have delivered to the Administrative Agent on or before the closing date of the acquisition a description of the acquisition (including, and in without limitation, a description of the Person or assets to be acquired, the purchase price, the manner set forth inof acquisition, Article IXthe payment structure and any other terms and conditions reasonably required by the Administrative Agent) and draft copies of the governing documentation (including, without limitation, the purchase agreement) with respect to the acquisition;
(B3) the Borrowers shall have delivered to the Administrative Agent all documents required pursuant to Sections 9.12 and 9.13 hereof pursuant to the provisions thereof;
(4) the Borrowers shall have delivered to the Administrative Agent evidence of the approval referred of the acquisition by the board of directors or equivalent governing body (or the shareholders) of the seller and/or the Person to be acquired, in clause (iv) above, form and (C) delivered written notice of such proposed acquisition substance satisfactory to the Administrative Agent and Agent, within thirty (30) days after the Lenders, which notice shall include the proposed closing date of such proposed acquisition and a description of the acquisition in the form customarily prepared by the US Borrower, not less than five acquisition;
(5) Business Days prior to such proposed closing date; and
(vii) the US Borrower Borrowers shall have delivered to the Administrative Agent copies of the final governing documentation (including, without limitation, the purchase agreement and all opinions of counsel to the seller and/or the Person to be acquired) with respect to the acquisition within thirty (30) days after the closing of the acquisition;
(6) the Borrowers shall have delivered to the Administrative Agent within thirty (30) days after the closing of the acquisition, in form and substance satisfactory thereto, the historical financial statements of the Person to be acquired, if applicable, for the most recent two (2) year period and the most recent interim financial statements of the Person to be acquired;
(7) the Borrowers shall have delivered to the Administrative Agent within thirty (30) days after the closing of the acquisition, in form and substance satisfactory thereto, a projected income statement, statement of cash flows and balance sheet (including, without limitation, a summary of assumptions and pro forma adjustments made in connection --- ----- therewith) of the Person to be acquired, if applicable, prepared on a quarterly basis for the ensuing three (3) year period;
(8) the Borrowers shall have delivered to the Administrative Agent all due diligence reports prepared by or on behalf of the Company or the applicable Subsidiary thereof within thirty (30) days after the consummation of the acquisition; and
(9) the Borrowers shall have provided to the Administrative Agent such other documents reasonably requested by the Administrative Agent or in connection with such acquisition;
(C) with respect to any such investment for which the prior written consent of the Required Lenders is required (through regardless of whether the Person surviving such acquisition is or is not a Material Subsidiary), the Borrowers must comply with the following additional requirements:
(1) the Borrowers shall have delivered to the Lenders, not less than ten (10) calendar days prior to the proposed closing date of the acquisition, a description of the acquisition (including, without limitation, a description of the Person or assets to be acquired, the purchase price, the manner of acquisition, the payment structure and any other terms and conditions reasonably required by the Administrative Agent) pursuant and draft copies of the governing documentation (including, without limitation, the purchase agreement) with respect to Section 8.11 the acquisition;
(2) the Borrowers shall have delivered to the Lenders, not less than ten (10) calendar days prior to the proposed closing date of the acquisition, all due diligence reports prepared by or on behalf of the Company or the applicable Subsidiary thereof;
(3) the Borrowers shall have delivered to the Lenders, not less than ten (10) calendar days prior to the proposed closing date of the acquisition, the historical financial statements of the Person to be delivered at acquired, if applicable, for the time required pursuant most recent two (2) year period and the most recent interim financial statements of the Person to Section 8.11.be acquired;
(d4) investments by the US Borrower or any Subsidiary thereof in Borrowers shall have delivered to the form of acquisitions of all or substantially all Lenders, not less than ten (10) calendar days prior to the proposed closing date of the business or acquisition, a line projected income statement, statement of business cash flows and balance sheet (whether by the acquisition including, without limitation, a summary of Capital Stock, assets or any combination thereofassumptions and pro forma adjustments made in connection therewith) of any other the Person to be acquired, if each such acquisition meets all applicable, prepared on a quarterly basis for the ensuing three (3) year period;
(5) the Borrowers shall have delivered to the Lenders, on or before the closing date of the following requirements acquisition, an Officer's Compliance Certificate demonstrating, in form and substance reasonably satisfactory thereto, (such acquisition being referred to herein as a “Permitted Foreign Acquisition”):
I) pro forma compliance --- ----- with each covenant contained in Articles X and XI and (iII) that the Person to be acquired shall be organized under the laws of a jurisdiction other than the United States of America, or the assets to be acquired shall be located outside of the continental United States of America, and such Person shall be engaged in a business, or such assets shall be used in a business, permitted pursuant to Section 10.12have positive pro forma cash flow;
(ii6) the US Borrower or any Subsidiary (including any entity being acquired that becomes a Subsidiary) shall be the surviving Person and no Change of Control Borrowers shall have been effected therebydelivered to the Lenders all documents required pursuant to Sections 9.12, 9.13 and 9.14 hereof pursuant to the provisions thereof;
(iii7) the Borrowers shall have delivered to the Lenders, on or before the closing date of the acquisition, copies of all opinions of counsel to the seller and/or the Person to be acquired shall not be subject to any material pending litigation which could reasonably be expected to have a Material Adverse Effect; [Second Amendment – SCP Pool Corporation] 87are delivered in connection with the acquisition;
(iv) prior 8) the Borrowers shall have delivered to the closing Lenders evidence of such acquisition, the approval of the acquisition is approved by the board of directors or equivalent governing body (or a majority of the holders of the Capital Stock of such Personshareholders) of the seller and/or the Person whose assets or Capital Stock are being acquired pursuant to such be acquired, in form and substance satisfactory to the Administrative Agent, within twenty (20) days after the closing of the acquisition;
(v9) no Default or Event of Default the Borrowers shall have occurred and be continuing both before and after giving effect to such proposed acquisition;
(vi) the aggregate amount of Permitted Acquisition Consideration payable (A) with respect to any Permitted Foreign Acquisition or series of related Permitted Foreign Acquisitions does not exceed $35,000,000 in cash and (B) with respect to all Permitted Foreign Acquisitions and the total amount of any transactions permitted under Sections 10.1(i), 10.3(i) and 10.5(f) does not exceed $75,000,000 in the aggregate during the term of this Agreement; and
(vii) if the aggregate amount of Permitted Acquisition Consideration payable in cash with respect to such proposed acquisition or series of related acquisitions exceeds $20,000,000, the US Borrower shall have (A) demonstrated to the Administrative Agent pro forma compliance (as of the date of the proposed acquisition and after giving effect thereto and any Extensions of Credit made or to be made in connection therewith) with each covenant contained in, and in the manner set forth in, Article IX, (B) delivered to the Administrative Agent evidence Lenders copies of the approval referred to in clause (iv) above, and (C) delivered written notice of such proposed acquisition to the Administrative Agent and the Lenders, which notice shall include the proposed closing date of such proposed acquisition and a description of the acquisition in the form customarily prepared by the US Borrower, not less than five (5) Business Days prior to such proposed closing date.
(e) Hedging Agreements permitted pursuant to Section 10.1;
(f) purchases of assets in the ordinary course of business;
(g) investments in the form of loans and advances to employees in the ordinary course of business, which, in the aggregate, do not exceed at any time $500,000;
(h) intercompany Indebtedness permitted pursuant to Section 10.1(h);
(i) the creation of new Foreign Subsidiaries, the investment in which, together with the Permitted Acquisition Consideration payable in connection with all Permitted Foreign Acquisitions and the total amount of any transactions permitted under Sections 10.1(i) and 10.5(f), does not exceed $75,000,000 in the aggregate during the term of this Agreement;
(j) the creation of Domestic Subsidiaries after the Closing Date so long as (i) each such Domestic Subsidiary shall comply with Section 8.11 and (ii) the creation of such Domestic Subsidiary is otherwise made in accordance with the terms and conditions of this Agreement final governing documentation (including, without limitation, this Section 10.3)the purchase agreement) with respect to the acquisition within twenty (20) days after the closing of the acquisition;
(k10) equity investments the Borrowers shall have provided to the Lenders such other documents reasonably requested by the Administrative Agent in connection with such acquisition; and
(f) intercompany loans and advances to a Wholly-Owned Subsidiary of any Borrower if the following requirements are satisfied: (i) by such Wholly-Owned Subsidiary must be created solely for the US Borrower in any Subsidiary Guarantorpurpose of consummating a Permitted Acquisition under Section 11.4, (ii) by any Subsidiary such loan or advance must be made solely for the purpose of consummating a Permitted Acquisition under Section 11.4 and shall be made in the US Borrower, compliance with Section 6.3(d) and (iii) by any the Borrowers and such Wholly-Owned Subsidiary in any Subsidiary Guarantor or (iv) by any Subsidiary that is not a Subsidiary Guarantor in any other Subsidiary that is not a Subsidiary Guarantor;
(l) so long as no Default or Event of Default has occurred or would result therefrommust comply with the Sections 6.3(d), the initial investment by the US Borrower 9.12, 9.13, 9.14 and its Subsidiaries in a proposed joint venture previously described to the Administrative Agent in an aggregate amount not to exceed the lesser of (A) $40,000,000 or (B) the aggregate amount reasonably determined by the US Borrower and its Subsidiaries as necessary to initially capitalize such joint venture;
(m) other additional domestic investments not otherwise permitted pursuant to this Section not exceeding $7,500,000 in the aggregate in any Fiscal Year; and
(n) so long as no Default or Event of Default has occurred or would result therefrom, the contribution by Pool Development LLC, a wholly-owned Subsidiary of the US Borrower, to the capital of Northpark Corporate Center, L.L.C., a Louisiana limited liability company, in an aggregate amount not to exceed $4,000,000 in exchange for a fifty percent (50%) ownership interest in Northpark Corporate Center, L.L.C.11.4.
Appears in 1 contract
Limitations on Loans, Advances, Investments and Acquisitions. Purchase, own, invest in or otherwise acquire, directly or indirectly, any Capital Stockcapital stock, interests in any partnership or joint venture (including, without limitation, the creation or capitalization of [Second Amendment – SCP Pool Corporation] 85 any Subsidiary), evidence of Indebtedness Debt or other obligation or security, substantially all or a portion of the business or assets of any other Person or any other investment or interest whatsoever in any other Person, or make or permit to exist, directly or indirectly, any loans, advances or extensions of credit to, or any investment in cash or by delivery of property in, any Person Person, or enter into, directly or indirectly, any commitment or option in respect of the foregoing except:
(a) (i) investments in Subsidiaries existing on the Closing Date in Subsidiaries, and (ii) the other existing loans, advances and investments existing on the Closing Date which are described on Schedule 10.39.4;
(b) investments in (i) marketable direct obligations issued or unconditionally guaranteed by the United States of America or any agency thereof maturing within one three hundred twenty and sixty (120360) days from the date of acquisition thereof, (ii) commercial paper maturing no more than one hundred and twenty (120) days from the date of creation thereof and currently having the highest rating obtainable from either Standard & Poor’s 's Ratings Services, a division of The XxXxxxMcGraw-Xxxx Hill Companies, Inc. or Xxxxx’x xx Xxxxx'x Investors Service, Inc.Xxx., (iii) certificates of deposit maturing no more than one hundred and twenty (120) days from the date of creation thereof issued by commercial banks incorporated or licensed under the laws of the United StatesStates of America, each having combined capital, surplus and undivided profits of not less than $500,000,000 and having a rating of “"A” " or better by a nationally recognized rating agency; provided, that the aggregate amount invested in such certificates of deposit shall not at any time exceed $5,000,000 for any one such certificate of deposit and $10,000,000 for any one such bank, or (iv) time deposits maturing no more than thirty (30) days from the date of creation thereof with commercial banks or savings banks or savings and loan associations each having membership either in the FDIC or the deposits of which are insured by the FDIC and in amounts not exceeding the maximum amounts of insurance thereunder or (v) demand deposit accounts maintained in the ordinary course of businessthereunder;
(c) investments by the US Borrower BREED or any Subsidiary thereof of its Subsidiaries in the form of acquisitions of all or substantially all of the business or a line of business (whether by the acquisition of Capital Stockcapital stock, assets or any combination thereof) of any other Person if each such acquisition meets all of the following requirements (such acquisition being referred to herein as a “Permitted Domestic Acquisition”):
requirements: (i) the Person whose equity interest is to be acquired shall be organized under the laws or, as a result of the United States such acquisition shall become, a Wholly-Owned Subsidiary of America, or the assets to be acquired shall be located in the continental United States of America, and such Person shall be engaged in a business, or such assets shall be used in a business, permitted pursuant to Section 10.12;
(ii) the US Borrower or any Subsidiary (including any entity being acquired that becomes a Subsidiary) shall be the surviving Person BREED and no Change of in Control shall have been effected thereby;
, (iiiii) the Person whose equity interest is to be acquired shall not engage in a business or the assets being acquired are to be subject to any material pending litigation which could reasonably be expected to have used in a Material Adverse Effect; [Second Amendment – SCP Pool Corporation] 86
business described in Section 7.10, (iviii) prior to the closing evidence of such acquisition, approval of the acquisition is approved by of the board of directors (or a majority equivalent governing body of the holders acquired Person, including, without limitation, resolutions duly adopted by the board or directors or equivalent governing body of the Capital Stock acquired Person authorizing the acquisition and the execution, delivery and performance of any transactions contemplated thereby, shall have been delivered to the Administrative Agent, (iv) such Person) of documents reasonably requested by the Person whose assets or Capital Stock are being acquired Administrative Agent pursuant to such acquisition;
Section 7.12 hereof shall have been delivered to the Administrative Agent, (v) the Borrowers shall have demonstrated pro forma compliance with each covenant contained in Articles VII, VIII and IX hereof prior to consummating the acquisition and no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such proposed the acquisition;
, (vi) if a description of the aggregate amount of Permitted Acquisition Consideration payable in cash with respect to such proposed acquisition or series of related acquisitions exceeds $50,000,000, and the US Borrower governing documentation shall have (A) demonstrated to the Administrative Agent pro forma compliance (as of the date of the proposed acquisition and after giving effect thereto and any Extensions of Credit made or to be made in connection therewith) with each covenant contained in, and in the manner set forth in, Article IX, (B) been delivered to the Administrative Agent evidence of the approval referred to in clause (iv) above, and (C) delivered written notice of such proposed acquisition to the Administrative Agent and the Lenders, which notice shall include the proposed closing date of such proposed acquisition and a description of the acquisition in the form customarily prepared by the US Borrower, not less than at least five (5) Business Days prior to such proposed closing date; and
the consummation of the acquisition and a copy of the final governing documentation shall be delivered within a reasonable time after the acquisition, and (vii) if such acquisition or investment, if completed, would cause the US Borrower shall have delivered aggregate fair market value of all consideration paid in respect of all such acquisitions or investments to the Administrative Agent such documents reasonably requested by the Administrative Agent or exceed $25,000,000 during any Fiscal Year, the Required Lenders (through shall have consented in writing to such acquisition or investment prior to the Administrative Agent) pursuant to Section 8.11 to be delivered at the time required pursuant to Section 8.11.proposed acquisition or investment;
(d) investments by the US Borrower or any Subsidiary thereof in the form of acquisitions of all or substantially all of the business or a line of business (whether by the acquisition of Capital Stock, assets or any combination thereof) of any other Person if each such acquisition meets all of the following requirements (such acquisition being referred to herein as a “Permitted Foreign Acquisition”):
(i) the Person to be acquired shall be organized under the laws of a jurisdiction other than the United States of America, or the assets to be acquired shall be located outside of the continental United States of America, intercompany loans and such Person shall be engaged in a business, or such assets shall be used in a business, advances permitted pursuant to Section 10.129.1(h);
(ii) the US Borrower or any Subsidiary (including any entity being acquired that becomes a Subsidiary) shall be the surviving Person and no Change of Control shall have been effected thereby;
(iii) the Person to be acquired shall not be subject to any material pending litigation which could reasonably be expected to have a Material Adverse Effect; [Second Amendment – SCP Pool Corporation] 87
(iv) prior to the closing of such acquisition, the acquisition is approved by the board of directors (or a majority of the holders of the Capital Stock of such Person) of the Person whose assets or Capital Stock are being acquired pursuant to such acquisition;
(v) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such proposed acquisition;
(vi) the aggregate amount of Permitted Acquisition Consideration payable (A) with respect to any Permitted Foreign Acquisition or series of related Permitted Foreign Acquisitions does not exceed $35,000,000 in cash and (B) with respect to all Permitted Foreign Acquisitions and the total amount of any transactions permitted under Sections 10.1(i), 10.3(i) and 10.5(f) does not exceed $75,000,000 in the aggregate during the term of this Agreement; and
(vii) if the aggregate amount of Permitted Acquisition Consideration payable in cash with respect to such proposed acquisition or series of related acquisitions exceeds $20,000,000, the US Borrower shall have (A) demonstrated to the Administrative Agent pro forma compliance (as of the date of the proposed acquisition and after giving effect thereto and any Extensions of Credit made or to be made in connection therewith) with each covenant contained in, and in the manner set forth in, Article IX, (B) delivered to the Administrative Agent evidence of the approval referred to in clause (iv) above, and (C) delivered written notice of such proposed acquisition to the Administrative Agent and the Lenders, which notice shall include the proposed closing date of such proposed acquisition and a description of the acquisition in the form customarily prepared by the US Borrower, not less than five (5) Business Days prior to such proposed closing date.
(e) Hedging Agreements permitted pursuant to Section 10.1investments in Subsidiaries formed for the purpose of issuing Convertible Preferred Stock of BREED or any of its Subsidiaries;
(f) purchases of assets in the ordinary course of business;
(g) investments in the form of loans and advances to employees in the ordinary course of business, which, in the aggregate, do not exceed at any time $500,000;
(h) intercompany Indebtedness permitted pursuant to Section 10.1(h);
(i) the creation of new Foreign Subsidiaries, the investment in which, together with the Permitted Acquisition Consideration payable in connection with all Permitted Foreign Acquisitions and the total amount of any transactions permitted under Sections 10.1(i) and 10.5(f), does not exceed $75,000,000 in the aggregate during the term of this Agreement;
(j) the creation of Domestic Subsidiaries after the Closing Date so long as (i) each such Domestic Subsidiary shall comply with Section 8.11 and (ii) the creation of such Domestic Subsidiary is otherwise made in accordance with the terms and conditions of this Agreement (including, without limitation, this Section 10.3);
(k) equity investments (i) by the US Borrower in any Subsidiary Guarantor, (ii) by any Subsidiary in the US Borrower, (iii) by any Subsidiary in any Subsidiary Guarantor or (iv) by any Subsidiary that is not a Subsidiary Guarantor in any other Subsidiary that is not a Subsidiary Guarantor;
(l) so long as no Default or Event of Default has occurred or would result therefrom, the initial investment by the US Borrower and its Subsidiaries in a proposed joint venture previously described to the Administrative Agent in an aggregate amount not to exceed the lesser of (A) $40,000,000 or (B) the aggregate amount reasonably determined by the US Borrower and its Subsidiaries as necessary to initially capitalize such joint venture;
(m) other additional domestic investments not otherwise permitted pursuant to this Section not exceeding $7,500,000 in the aggregate in any Fiscal Year; and
(n) so long as no Default or Event of Default has occurred or would result therefrom, the contribution by Pool Development LLC, a wholly-owned Subsidiary of the US Borrower, to the capital of Northpark Corporate Center, L.L.C., a Louisiana limited liability company, business in an aggregate amount not to exceed $4,000,000 2,500,000 at any one time; and
(g) investments in exchange for a fifty percent (50%) ownership joint ventures and minority interest investments in Northpark Corporate Center, L.L.C.an aggregate amount not to exceed $25,000,000.
Appears in 1 contract
Limitations on Loans, Advances, Investments and Acquisitions. Purchase, own, invest in or otherwise acquire, directly or indirectly, any Capital Stockcapital stock, interests in any partnership partnership, limited liability company or joint venture (including, without limitation, the creation or capitalization of [Second Amendment – SCP Pool Corporation] 85 or any Subsidiary), evidence of Indebtedness Debt or other obligation or security, substantially all or a portion of the business or assets of any other Person or any other investment or interest whatsoever in any other Person, or make or permit to exist, directly or indirectly, any loans, advances or extensions of credit to, or any investment in cash or by delivery of property in, any Person exceptPerson, or enter into, directly or indirectly, any commitment or option in respect of the foregoing except investments in:
(a) (i) investments existing on the Closing Date in Subsidiaries, cash and (ii) the other loans, advances and investments existing on the Closing Date which are described on Schedule 10.3;
(b) investments in (i) marketable direct obligations issued or unconditionally guaranteed by the United States of America or any agency thereof maturing within one hundred twenty (120) 120 days from the date of acquisition thereof, ;
(iib) commercial paper maturing no more than one hundred twenty (120) 120 days from the date of creation thereof and currently having the highest rating obtainable from either Standard & Poor’s 's Ratings Services, a division of The XxXxxxMxXxxx-Xxxx Companies, Inc. or Xxxxx’x Mxxxx'x Investors Service, Inc., ;
(iiic) certificates of deposit maturing no more than one hundred twenty (120) 120 days from the date of creation thereof issued by commercial banks incorporated under the laws of the United StatesStates of America, each having combined capital, surplus and undivided profits of not less than $500,000,000 and having a rating of “"A” " or better by a nationally recognized rating agency; provided, that the aggregate amount invested in such certificates of deposit shall not at any time exceed $5,000,000 for any one such certificate of deposit and $10,000,000 for any one such bank, ;
(ivd) time deposits maturing no more than thirty (30) days from the date of creation thereof with commercial banks or savings banks or savings and loan associations each having membership either in the FDIC or the deposits of which are insured by the FDIC and in amounts not exceeding the maximum amounts of insurance thereunder or thereunder;
(ve) demand deposit accounts maintained loans and advances to officers, directors, employees and Affiliates (including advances for travel and miscellaneous expenses) in the ordinary course of business;
(c) investments by the US Borrower or any Subsidiary thereof business in the form of acquisitions of all or substantially all of the business or a line of business (whether by the acquisition of Capital Stock, assets or any combination thereof) of any other Person if each such acquisition meets all of the following requirements (such acquisition being referred to herein as a “Permitted Domestic Acquisition”):
(i) the Person to be acquired shall be organized under the laws of the United States of America, or the assets to be acquired shall be located in the continental United States of America, and such Person shall be engaged in a business, or such assets shall be used in a business, permitted pursuant to Section 10.12;
(ii) the US Borrower or any Subsidiary (including any entity being acquired that becomes a Subsidiary) shall be the surviving Person and no Change of Control shall have been effected thereby;
(iii) the Person to be acquired shall not be subject to any material pending litigation which could reasonably be expected to have a Material Adverse Effect; [Second Amendment – SCP Pool Corporation] 86
(iv) prior to the closing of such acquisition, the acquisition is approved by the board of directors (or a majority of the holders of the Capital Stock of such Person) of the Person whose assets or Capital Stock are being acquired pursuant to such acquisition;
(v) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such proposed acquisition;
(vi) if the an aggregate amount of Permitted Acquisition Consideration payable in cash with respect not to such proposed acquisition or series of related acquisitions exceeds exceed $50,000,000, the US Borrower shall have (A) demonstrated to the Administrative Agent pro forma compliance (as of the 25,000 on any date of the proposed acquisition and after giving effect thereto and any Extensions of Credit made determination (without regard to write-offs or to be made in connection therewith) with each covenant contained in, and in the manner set forth in, Article IX, (B) delivered to the Administrative Agent evidence of the approval referred to in clause (iv) above, and (C) delivered written notice of such proposed acquisition to the Administrative Agent and the Lenders, which notice shall include the proposed closing date of such proposed acquisition and a description of the acquisition in the form customarily prepared by the US Borrower, not less than five (5) Business Days prior to such proposed closing date; and
(vii) the US Borrower shall have delivered to the Administrative Agent such documents reasonably requested by the Administrative Agent or the Required Lenders (through the Administrative Agent) pursuant to Section 8.11 to be delivered at the time required pursuant to Section 8.11.
(d) investments by the US Borrower or any Subsidiary thereof in the form of acquisitions of all or substantially all of the business or a line of business (whether by the acquisition of Capital Stock, assets or any combination write-downs thereof) of any other Person if each such acquisition meets all of the following requirements (such acquisition being referred to herein as a “Permitted Foreign Acquisition”):
(i) the Person to be acquired shall be organized under the laws of a jurisdiction other than the United States of America, or the assets to be acquired shall be located outside of the continental United States of America, and such Person shall be engaged in a business, or such assets shall be used in a business, permitted pursuant to Section 10.12;
(ii) the US Borrower or any Subsidiary (including any entity being acquired that becomes a Subsidiary) shall be the surviving Person and no Change of Control shall have been effected thereby;
(iii) the Person to be acquired shall not be subject to any material pending litigation which could reasonably be expected to have a Material Adverse Effect; [Second Amendment – SCP Pool Corporation] 87
(iv) prior to the closing of such acquisition, the acquisition is approved by the board of directors (or a majority of the holders of the Capital Stock of such Person) of the Person whose assets or Capital Stock are being acquired pursuant to such acquisition;
(v) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such proposed acquisition;
(vi) the aggregate amount of Permitted Acquisition Consideration payable (A) with respect to any Permitted Foreign Acquisition or series of related Permitted Foreign Acquisitions does not exceed $35,000,000 in cash and (B) with respect to all Permitted Foreign Acquisitions and the total amount of any transactions permitted under Sections 10.1(i), 10.3(i) and 10.5(f) does not exceed $75,000,000 in the aggregate during the term of this Agreement; and
(vii) if the aggregate amount of Permitted Acquisition Consideration payable in cash with respect to such proposed acquisition or series of related acquisitions exceeds $20,000,000, the US Borrower shall have (A) demonstrated to the Administrative Agent pro forma compliance (as of the date of the proposed acquisition and after giving effect thereto and any Extensions of Credit made or to be made in connection therewith) with each covenant contained in, and in the manner set forth in, Article IX, (B) delivered to the Administrative Agent evidence of the approval referred to in clause (iv) above, and (C) delivered written notice of such proposed acquisition to the Administrative Agent and the Lenders, which notice shall include the proposed closing date of such proposed acquisition and a description of the acquisition in the form customarily prepared by the US Borrower, not less than five (5) Business Days prior to such proposed closing date.
(e) Hedging Agreements permitted pursuant to Section 10.1;
(f) purchases investments (including debt obligations) received in connection with the bankruptcy or reorganization of assets suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;
(g) investments by the Borrower in the form of loans and advances to employees in the ordinary course of business, which, in the aggregate, do not exceed at any time $500,000;Hedging Agreements permitted under Section 9.1(e); and
(h) intercompany Indebtedness permitted pursuant to Section 10.1(h);
investments by the Borrower in joint ventures; provided that (i) the creation of new Foreign Subsidiaries, the investment in which, together with the Permitted Acquisition Consideration payable in connection with all Permitted Foreign Acquisitions and the total amount of any transactions permitted under Sections 10.1(i) and 10.5(f), does such investments shall not exceed $75,000,000 150,000 individually or $300,000 in the aggregate during the term of this Agreement;
, (j) the creation of Domestic Subsidiaries after the Closing Date so long as (iii) each such Domestic Subsidiary joint venture shall be in substantially the same field of business as that to be conducted by the Borrower on the Completion Date, (iii) the Borrower shall provide written notice of each such joint venture not less than ten (10) Business Days prior to the proposed date of consummation of such joint venture, (iv) the Borrower shall comply with Section 8.11 and (ii) the creation of such Domestic Subsidiary is otherwise made in accordance with the all terms and conditions of this Agreement (including, without limitation, this Section 10.3);
(k) equity investments (i) by the US Borrower Security Documents in any Subsidiary Guarantor, (ii) by any Subsidiary connection with its interest in the US Borrower, (iii) by any Subsidiary in any Subsidiary Guarantor or (iv) by any Subsidiary that is not a Subsidiary Guarantor in any other Subsidiary that is not a Subsidiary Guarantor;
(l) so long as no Default or Event of Default has occurred or would result therefrom, the initial investment by the US Borrower and its Subsidiaries in a proposed each such joint venture previously described within thirty (30) days of the date of consummation of each such joint venture and (v) the Borrower shall provide to the Administrative Agent all other agreements, certificates and other documents reasonably requested thereby in an aggregate amount not to exceed the lesser of (A) $40,000,000 or (B) the aggregate amount reasonably determined by the US Borrower and its Subsidiaries as necessary to initially capitalize connection with each such joint venture;
(m) other additional domestic investments not otherwise permitted pursuant to this Section not exceeding $7,500,000 in the aggregate in any Fiscal Year; and
(n) so long as no Default or Event of Default has occurred or would result therefrom, the contribution by Pool Development LLC, a wholly-owned Subsidiary of the US Borrower, to the capital of Northpark Corporate Center, L.L.C., a Louisiana limited liability company, in an aggregate amount not to exceed $4,000,000 in exchange for a fifty percent (50%) ownership interest in Northpark Corporate Center, L.L.C..
Appears in 1 contract
Samples: Loan Agreement (Medcath Corp)
Limitations on Loans, Advances, Investments and Acquisitions. Purchase, own, invest in or otherwise acquire, directly or indirectly, any Capital Stockcapital stock, interests in any partnership or joint venture (including, without limitation, the creation or capitalization of [Second Amendment – SCP Pool Corporation] 85 any Restricted Subsidiary), evidence of Indebtedness Debt or other obligation or security, substantially all or a portion of the business or assets of any other Person or any other investment or interest whatsoever in any other Person, or make or permit to exist, directly or indirectly, any loans, advances or extensions of credit to, or any investment in cash or by delivery of property in, any Person except:
(a) investments (i) investments in Restricted Subsidiaries existing on the Closing Date, (ii) in Restricted Subsidiaries formed or acquired after the Closing Date in Subsidiaries, so long as the Borrower and its Restricted Subsidiaries comply with the applicable provisions of Section 9.11 and Section 11.3(d) and (iiiii) the other loans, advances and investments described on SCHEDULE 11.3 existing on the Closing Date which are described on Schedule 10.3Date;
(b) investments in (i) marketable direct obligations issued or unconditionally guaranteed by the United States of America or any agency thereof maturing within one hundred twenty (120) days from the date of acquisition thereof, (ii) commercial paper maturing no more than one hundred twenty (120) days from the date of creation thereof and currently having the highest rating obtainable from either Standard & Poor’s 's Ratings Services, a division of The XxXxxxMcGraw-Xxxx Hill Companies, Inc. or Xxxxx’x Moody's Investors Service, Inc., (iii) certificates xxxxxxxxxxes of deposit maturing no more maturixx xx xore than one hundred twenty (120) days from the date of creation thereof issued by commercial banks incorporated under the laws of the United StatesStates of America, each having combined capital, surplus and undivided profits of not less than $500,000,000 and having a rating of “"A” " or better by a nationally recognized rating agency; providedPROVIDED, that the aggregate amount invested in such certificates of deposit shall not at any time exceed $5,000,000 for any one such certificate of deposit and $10,000,000 for any one such bank, (iv) time deposits maturing no more than thirty (30) days from the date of creation thereof with commercial banks or savings banks or savings and loan associations each having membership either in the FDIC or the deposits of which are insured by the FDIC and in amounts not exceeding the maximum amounts of insurance thereunder thereunder; or (v) demand deposit accounts maintained repurchase agreements with a Lender or a bank or trust company or a recognized securities dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the ordinary course United States of business;America (such investments described in items (i) through (v) above, "CASH EQUIVALENTS"); and
(c) the Acquisition;
(d) investments by the US Borrower or any Restricted Subsidiary thereof in the form of acquisitions of all or substantially all of the business or a line of business (whether by the acquisition of Capital Stockcapital stock, assets or any combination thereof) of any other Person if each such acquisition meets all of the following requirements (such acquisition being referred to herein as a “acquisitions being, "Permitted Domestic Acquisition”Acquisitions"):
(i) the Person to be acquired shall be organized under the laws of the United States of America, or the assets to be acquired shall be located in the continental United States of America, and such Person shall be engaged in a business, or such assets shall be used in a business, permitted pursuant to Section 10.12;substantially similar line of business as the Borrower,
(ii) evidence of approval of the US acquisition by the acquiree's board of directors or equivalent governing body or a copy of the opinion of counsel delivered by legal counsel to the acquiree in connection with the acquisition which evidences such approval shall be delivered to the Administrative Agent at the time the documents referred to in clause (vi) of this Section 11.3(d) are required to be delivered;
(iii) a description of the acquisition in the form customarily prepared by the Borrower shall have been delivered to the Administrative Agent and the Lenders prior to the consummation of the acquisition;
(iv) the Borrower or any Restricted Subsidiary (including any entity being acquired that becomes a Subsidiary) shall be the surviving Person and no Change of Control shall have been effected thereby;
(iiiv) the Person to be acquired shall not be subject to any material pending litigation which could reasonably be expected to have a Material Adverse Effect; [Second Amendment – SCP Pool Corporation] 86
(iv) prior to the closing of such acquisition, the acquisition is approved by the board of directors (or a majority of the holders of the Capital Stock of such Person) of the Person whose assets or Capital Stock are being acquired pursuant to such acquisition;
(v) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such proposed acquisition;
(vi) if the aggregate amount of Permitted Acquisition Consideration payable in cash with respect to such proposed acquisition or series of related acquisitions exceeds $50,000,000, the US Borrower shall have (A) demonstrated to the Administrative Agent pro forma (A) PRO FORMA compliance (as of the date of the proposed acquisition and after giving effect thereto and any Extensions of Credit made or to be made in connection therewith) with each covenant contained in, in and in the manner set forth in, Article IXX, (B) delivered to the Administrative Agent evidence PRO FORMA Asset Coverage Ratio (as of the approval referred date of the proposed acquisition and after giving effect thereto and any Extensions of Credit made or to be made in clause (ivconnection therewith) aboveequal to or exceeding 1.00 to 1.00, and (C) delivered written notice maintenance of such proposed acquisition at least $25,000,000 of availability under the Revolving Credit Facility both before and after giving effect to the Administrative Agent proposed acquisition; and (D) a Maximum Total Leverage Ratio at least .25 below the Lenders, which notice shall include the proposed closing date of such proposed acquisition and a description of the acquisition applicable ratio set forth in the form customarily prepared by the US Borrower, not less than five (5) Business Days Section 10.1 prior to such proposed closing date; andconsummating the acquisition, and no Default or Event of Default shall have occurred and be continuing both before and after giving effect to the acquisition;
(viivi) the US Borrower shall have delivered to the Administrative Agent such documents reasonably requested by the Administrative Agent or the Required Lenders (through the Administrative Agent) pursuant to Section 8.11 to be delivered at the time required pursuant to Section 8.11.
(d) investments 8.11 confirming that such Person is or will be a Subsidiary Guarantor hereunder, and its Subsidiary Guaranteed Obligations incurred in such capacity are secured by the US Security Documents, said documents to include a favorable opinion of counsel to the Borrower or any Subsidiary thereof in acceptable to the form of acquisitions of all or substantially all of Administrative Agent addressed to the business or a line of business (whether by Administrative Agent and the acquisition of Capital StockLenders with respect to the Borrower, assets or any combination thereof) of any other Person if each such acquisition meets all of the following requirements (such acquisition being referred to herein as a “Permitted Foreign Acquisition”):
(i) the Person to be acquired shall be organized under and the laws of a jurisdiction other than acquisition in form and substance reasonably acceptable to the United States of America, or the assets to be acquired shall be located outside of the continental United States of America, and such Person shall be engaged in a business, or such assets shall be used in a business, permitted pursuant to Section 10.12Administrative Agent;
(ii) the US Borrower or any Subsidiary (including any entity being acquired that becomes a Subsidiary) shall be the surviving Person and no Change of Control shall have been effected thereby;
(iii) the Person to be acquired shall not be subject to any material pending litigation which could reasonably be expected to have a Material Adverse Effect; [Second Amendment – SCP Pool Corporation] 87
(iv) prior to the closing of such acquisition, the acquisition is approved by the board of directors (or a majority of the holders of the Capital Stock of such Person) of the Person whose assets or Capital Stock are being acquired pursuant to such acquisition;
(v) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such proposed acquisition;
(vivii) the aggregate amount of Permitted Acquisition Consideration payable for such acquisition shall not exceed (A) with respect to any Permitted Foreign Acquisition or series of related Permitted Foreign Acquisitions does not exceed $35,000,000 in cash and (B) with respect to all Permitted Foreign Acquisitions and the total amount of any transactions permitted under Sections 10.1(i), 10.3(i) and 10.5(f) does not exceed $75,000,000 15,000,000 in the aggregate during the term of this Agreementper Fiscal Year for all such Permitted Acquisitions; and
(vii) if provided, HOWEVER, that any time Maximum Total Leverage Ratio is less than 2.50 to 1.00, the aggregate amount of Permitted Acquisition Consideration payable in cash with respect for such acquisitions shall not exceed $25,000,000 for any one such Permitted Acquisition;
(viii) the Person to such proposed acquisition or series of related acquisitions exceeds $20,000,000be acquired shall demonstrate positive EBITDA for the most recent twelve (12) month period then ended, the US Borrower shall have (A) demonstrated both prior to the Administrative Agent pro forma compliance (as of the date of the proposed acquisition and after giving effect thereto and any Extensions of Credit made or to be made in connection therewith) with each covenant contained inthereto, and in the manner set forth in, Article IX, (B) delivered to by providing the Administrative Agent evidence and Lenders copies of the approval referred to most recent financial statements and projections, all in clause (iv) above, form and (C) delivered written notice of such proposed acquisition substance reasonably satisfactory to the Administrative Agent and Lenders;
(ix) the Lenders, which notice Borrower shall include provide such other documents and other information as may be reasonably requested by the Administrative Agent or the Required Lenders (through the Administrative Agent) in connection with the proposed closing date of such proposed acquisition and a description of the acquisition in the form customarily prepared by the US Borrower, not less than five (5) Business Days prior to such proposed closing date.acquisition;
(e) Hedging Agreements permitted pursuant to Section 10.111.1;
(f) loans or advances made by the Borrower to any Restricted Subsidiary and made by any Subsidiary to the Borrower or any other Subsidiary; PROVIDED that any such loans and advances made by a Borrower or any other Restricted Subsidiary that are evidenced by a promissory note or other instrument shall be pledged pursuant to the Collateral Agreement;
(g) investments received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business;
(h) investments made after the Closing Date in joint ventures and other business entities (in each case that are not Subsidiaries of the Borrower) that are engaged in the same line or lines of business as the Borrower and its Restricted Subsidiaries in an aggregate amount not to exceed $5,000,000;
(i) loans to employees of the Borrower and the Restricted Subsidiaries in their capacity as such, in an aggregate principal amount not to exceed $1,000,000 at any time outstanding;
(j) any investment received as consideration, in whole or in part, for any asset sale otherwise permitted hereunder in an aggregate principal amount not to exceed $5,000,000; and
(k) purchases of assets in the ordinary course of business;
(g) investments in the form of loans and advances to employees in the ordinary course of business, which, in the aggregate, do not exceed at any time $500,000;
(h) intercompany Indebtedness permitted pursuant to Section 10.1(h);
(i) the creation of new Foreign Subsidiaries, the investment in which, together with the Permitted Acquisition Consideration payable in connection with all Permitted Foreign Acquisitions and the total amount of any transactions permitted under Sections 10.1(i) and 10.5(f), does not exceed $75,000,000 in the aggregate during the term of this Agreement;
(j) the creation of Domestic Subsidiaries after the Closing Date so long as (i) each such Domestic Subsidiary shall comply with Section 8.11 and (ii) the creation of such Domestic Subsidiary is otherwise made in accordance with the terms and conditions of this Agreement (including, without limitation, this Section 10.3);
(k) equity investments (i) by the US Borrower in any Subsidiary Guarantor, (ii) by any Subsidiary in the US Borrower, (iii) by any Subsidiary in any Subsidiary Guarantor or (iv) by any Subsidiary that is not a Subsidiary Guarantor in any other Subsidiary that is not a Subsidiary Guarantor;
(l) so long as no Default or Event of Default has occurred or would result therefrom, the initial investment by the US Borrower and its Subsidiaries in a proposed joint venture previously described to the Administrative Agent in an aggregate amount not to exceed the lesser of (A) $40,000,000 or (B) the aggregate amount reasonably determined by the US Borrower and its Subsidiaries as necessary to initially capitalize such joint venture;
(m) other additional domestic investments not otherwise permitted pursuant to this Section not exceeding $7,500,000 in the aggregate in any Fiscal Year; and
(n) so long as no Default or Event of Default has occurred or would result therefrom, the contribution by Pool Development LLC, a wholly-owned Subsidiary of the US Borrower, to the capital of Northpark Corporate Center, L.L.C., a Louisiana limited liability company, in an aggregate amount not to exceed $4,000,000 in exchange for a fifty percent (50%) ownership interest in Northpark Corporate Center, L.L.C..
Appears in 1 contract
Limitations on Loans, Advances, Investments and Acquisitions. Purchase, own, invest in or otherwise acquire, directly or indirectly, any Capital Stockcapital stock, interests in any partnership or joint venture (including, including without limitation, limitation the creation or capitalization of [Second Amendment – SCP Pool Corporation] 85 any Subsidiary), evidence of Indebtedness Debt or other obligation or security, substantially all or a portion of the business or assets of any other Person or any other investment or interest whatsoever in any other Person, or make or permit to exist, directly or indirectly, any loans, advances or extensions of credit to, or any investment in cash or by delivery of property in, any Person except:
(a) loans to wholly-owned Subsidiaries and investments in wholly-owned Subsidiaries not otherwise permitted by this Section 9.4; provided however that loans and advances to all non-Borrower Subsidiaries from Borrowers shall not exceed twenty percent (i20%) investments existing of Net Worth of JLG and its Subsidiaries on a Consolidated basis (as set forth on the Closing Date in Subsidiaries, most recently delivered financial statements by Borrowers to the Lenders) at any time outstanding; and (ii) the other existing loans, advances and investments existing on the Closing Date which are not otherwise permitted by this Section 9.4 described on Schedule 10.39.4;
(b) investments in (i) marketable direct obligations issued or unconditionally guaranteed by the United States of America or any agency thereof maturing within one hundred twenty (120) 120 days from the date of acquisition thereof, (ii) commercial paper maturing no more than one hundred twenty (120) 120 days from the date of creation thereof and currently having the highest rating obtainable from either Standard & Poor’s 's Ratings Services, a division of The XxXxxxMcGrxx-Xxxx CompaniesXxxpanies, Inc. or Xxxxx’x Investors Moodx x Xnvestors Service, Inc., (iii) certificates of deposit maturing no more than one hundred twenty (120) 120 days from the date of creation thereof issued by commercial banks incorporated under the laws of the United StatesStates of America, each having combined capital, surplus and undivided profits of not 51 58 less than $500,000,000 and having a rating of “A” A or better by a nationally recognized rating agency; provided, that the aggregate amount invested in such certificates of deposit shall not at any time exceed $5,000,000 for any one such certificate of deposit and $10,000,000 for any one such bank, (iv) time deposits maturing no more than thirty (30) 30 days from the date of creation thereof with commercial banks or savings banks or savings and loan associations each having membership either in the FDIC or the deposits of which are insured by the FDIC and in amounts not exceeding the maximum amounts of insurance thereunder or thereunder, (v) demand deposit accounts maintained in the ordinary course United States Treasury Department securities, (vi) banker's acceptances, (vii) corporate debt instruments having a rating of businessA or better by a nationally recognized rating agency, (viii) repurchase agreements that are secured by collateral having a value of 102% of such repurchase agreement, where such collateral is held by a third party custodian or (ix) money market funds;
(c) investments by the US a Borrower or any Subsidiary thereof in the form of acquisitions of all or substantially all of the business or a line of business (whether by the acquisition of Capital Stockcapital stock, assets or any combination thereof) of any other Person if each such acquisition meets all of the following requirements (such acquisition being referred to herein as a “Permitted Domestic Acquisition”):Person, provided, that:
(i) prior to the Person to be acquired shall be organized Termination Date (as such term is defined in the Existing Facility), such acquisition is permitted under the laws Section 10.4(c) of the United States of America, or the assets to be acquired shall be located in the continental United States of America, and such Person shall be engaged in a business, or such assets shall be used in a business, permitted pursuant to Section 10.12;Existing Facility and
(ii) on and after the US Termination Date (as such term is defined in the Existing Facility), (A) in the case of any acquisition with respect to which the purchase price to be paid by the Borrower or any Subsidiary is in excess of $20,000,000, at least ten (including any entity being acquired that becomes a Subsidiary10) shall be the surviving Person and no Change of Control shall have been effected thereby;
(iii) the Person to be acquired shall not be subject to any material pending litigation which could reasonably be expected to have a Material Adverse Effect; [Second Amendment – SCP Pool Corporation] 86
(iv) Business Days prior to the closing consummation of such acquisition, the acquisition is approved Borrowers deliver to Administrative Agent one (1) year of historical financial information for the entity to be acquired and an Officer's Compliance Certificate signed by a Responsible Officer setting forth the board of directors (or a majority calculation of the holders covenants set forth in Article VIII on a pro forma basis for the combined group as of the Capital Stock of such Person) consummation of the Person whose assets or Capital Stock are being acquired pursuant to such acquisition and on a projected basis as of the fiscal year end following the acquisition;
; (vB) there is no Default or Event of Default shall have occurred or Default hereunder at the time of such acquisition or investment or which would be caused by such acquisition or investment; and be continuing both before and after giving effect (C) such business or line of business is the same or substantially similar to such proposed acquisition;that of a Borrower's or a Subsidiary's existing line of business; and
(vid) if so long as the aggregate amount of Permitted Acquisition Consideration payable in cash with respect to such proposed acquisition loans, investments or series of related acquisitions exceeds $50,000,000, the US Borrower shall have guarantees does not collectively exceed twenty (A) demonstrated to the Administrative Agent pro forma compliance (as of the date of the proposed acquisition and after giving effect thereto and any Extensions of Credit made or to be made in connection therewith) with each covenant contained in, and in the manner set forth in, Article IX, (B) delivered to the Administrative Agent evidence of the approval referred to in clause (iv) above, and (C) delivered written notice of such proposed acquisition to the Administrative Agent and the Lenders, which notice shall include the proposed closing date of such proposed acquisition and a description of the acquisition in the form customarily prepared by the US Borrower, not less than five (5) Business Days prior to such proposed closing date; and
(vii) the US Borrower shall have delivered to the Administrative Agent such documents reasonably requested by the Administrative Agent or the Required Lenders (through the Administrative Agent) pursuant to Section 8.11 to be delivered at the time required pursuant to Section 8.11.
(d) investments by the US Borrower or any Subsidiary thereof in the form of acquisitions of all or substantially all of the business or a line of business (whether by the acquisition of Capital Stock, assets or any combination thereof20%) of any other Person if each such acquisition meets all of the following requirements (such acquisition being referred to herein as a “Permitted Foreign Acquisition”):
Net Worth, Borrowers and Subsidiaries may (i) the Person make loans to be acquired shall be organized under the laws of a jurisdiction other than the United States of America, or the assets to be acquired shall be located outside of the continental United States of America, and such Person shall be engaged in a business, or such assets shall be used in a business, permitted pursuant to Section 10.12;
(ii) the US Borrower or any Subsidiary (including any entity being acquired that becomes a Subsidiary) shall be the surviving Person and no Change of Control shall have been effected thereby;
(iii) the Person to be acquired shall not be subject to any material pending litigation which could reasonably be expected to have a Material Adverse Effect; [Second Amendment – SCP Pool Corporation] 87
(iv) prior to the closing of such acquisition, the acquisition is approved by the board of directors (or a majority of the holders of the Capital Stock of such Person) of the Person whose assets or Capital Stock are being acquired pursuant to such acquisition;
(v) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such proposed acquisition;
(vi) the aggregate amount of Permitted Acquisition Consideration payable (A) with respect to any Permitted Foreign Acquisition or series of related Permitted Foreign Acquisitions does not exceed $35,000,000 in cash and (B) with respect to all Permitted Foreign Acquisitions and the total amount of any transactions permitted under Sections 10.1(i), 10.3(i) and 10.5(f) does not exceed $75,000,000 in the aggregate during the term of this Agreement; and
(vii) if the aggregate amount of Permitted Acquisition Consideration payable in cash with respect to such proposed acquisition or series of related acquisitions exceeds $20,000,000, the US Borrower shall have (A) demonstrated to the Administrative Agent pro forma compliance (as of the date of the proposed acquisition and after giving effect thereto and any Extensions of Credit made or to be made in connection therewith) with each covenant contained in, and in the manner set forth in, Article IX, (B) delivered to the Administrative Agent evidence of the approval referred to in clause (iv) above, and (C) delivered written notice of such proposed acquisition to the Administrative Agent and the Lenders, which notice shall include the proposed closing date of such proposed acquisition and a description of the acquisition in the form customarily prepared by the US Borrower, not less than five (5) Business Days prior to such proposed closing date.
(e) Hedging Agreements permitted pursuant to Section 10.1;
(f) purchases of assets in the ordinary course of business;
(g) investments in the form of loans and advances to employees in the ordinary course of business, which, in the aggregate, do not exceed at any time $500,000;
(h) intercompany Indebtedness permitted pursuant to Section 10.1(h);
(i) the creation of new Foreign Subsidiaries, the investment in which, together with the Permitted Acquisition Consideration payable in connection with all Permitted Foreign Acquisitions and the total amount of any transactions permitted under Sections 10.1(i) and 10.5(f), does not exceed $75,000,000 in the aggregate during the term of this Agreement;
(j) the creation of Domestic Subsidiaries after the Closing Date so long as (i) each such Domestic Subsidiary shall comply with Section 8.11 joint ventures and (ii) the creation make loans to or investments in customers, or incur Guaranty Obligations with respect to obligations of such Domestic Subsidiary is otherwise made in accordance with the terms and conditions of this Agreement (including, without limitation, this Section 10.3);
(k) equity investments (i) by the US Borrower in any Subsidiary Guarantor, (ii) by any Subsidiary in the US Borrower, (iii) by any Subsidiary in any Subsidiary Guarantor or (iv) by any Subsidiary that is not a Subsidiary Guarantor in any other Subsidiary that is not a Subsidiary Guarantor;
(l) so long as no Default or Event of Default has occurred or would result therefrom, the initial investment by the US Borrower and its Subsidiaries in a proposed joint venture previously described to the Administrative Agent in an aggregate amount not to exceed the lesser of (A) $40,000,000 or (B) the aggregate amount reasonably determined by the US Borrower and its Subsidiaries as necessary to initially capitalize such joint venture;
(m) other additional domestic investments not otherwise permitted pursuant to this Section not exceeding $7,500,000 in the aggregate in any Fiscal Year; and
(n) so long as no Default or Event of Default has occurred or would result therefrom, the contribution by Pool Development LLC, a wholly-owned Subsidiary of the US Borrower, to the capital of Northpark Corporate Center, L.L.C., a Louisiana limited liability companycustomers, in an aggregate amount not order to exceed $4,000,000 in exchange for a fifty percent (50%) ownership interest in Northpark Corporate Center, L.L.C.facilitate sales of goods or services to such customers.
Appears in 1 contract
Samples: Working Capital Credit Agreement (JLG Industries Inc)
Limitations on Loans, Advances, Investments and Acquisitions. Purchase, own, invest in or otherwise acquire, directly or indirectly, any Capital Stock, interests in any partnership or joint venture (including, without limitation, the creation or capitalization of [Second Amendment – SCP Pool Corporation] 85 any Subsidiary), evidence of Indebtedness or other obligation or security, substantially all or a portion of the business or assets of any other Person or any other investment or interest whatsoever in any other Person, or make or permit to exist, directly or indirectly, any loans, advances or extensions of credit to, or any investment in cash or by delivery of property in, any Person (any such transaction, an “Investment”) except:
(a) (i) investments Investments existing on the Closing Restatement Date in Subsidiaries existing on the Restatement Date, (ii) investments in Domestic Subsidiaries (other than Investments existing on the Restatement Date and Investments in Domestic Subsidiaries of Foreign Subsidiaries, ) so long as the Parent Borrower and its Subsidiaries comply with the applicable provisions of Section 9.10 and (iiiii) the other loans, advances and investments Investments described on Schedule 11.3 existing on the Closing Date which are described on Schedule 10.3Restatement Date;
(b) investments (i) Investments in (iA) marketable direct obligations issued or unconditionally guaranteed by the United States or any agency thereof maturing within one hundred twenty (120) days from the date of acquisition thereof, (iiB) commercial paper maturing no more than one hundred twenty (120) days from the date of creation thereof and currently having the highest rating obtainable from either Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. or Xxxxx’x Investors Service, Inc., (iiiC) certificates of deposit maturing no more than one hundred twenty (120) days from the date of creation thereof issued by commercial banks incorporated under the laws of the United States, each having combined capital, surplus and undivided profits of not less than $500,000,000 and having a rating of “A” or better by a nationally recognized rating agency; provided, that the aggregate amount invested in such certificates of deposit shall not at any time exceed $5,000,000 for any one such certificate of deposit and $10,000,000 for any one such bank, (ivD) time deposits maturing no more than thirty (30) days from the date of creation thereof with commercial banks or savings banks or savings and loan associations each having membership either in the FDIC or the deposits of which are insured by the FDIC and in amounts not exceeding the maximum amounts of insurance thereunder thereunder, or (vE) demand money market funds that invest in any Investments described in items (A) through (D) above, (ii) Investments by any Foreign Subsidiary in the form of cash on deposit accounts maintained in any commercial bank up to an aggregate amount of $10,000,000, and (iii) Investments permitted pursuant to that certain investment policy of the Parent Borrower in effect as of the Original Closing Date and previously provided to the Administrative Agent (such Investments described in items (i), (ii), and (iii) above, “Cash Equivalents”);
(c) Investments by the Parent Borrower or any of its Subsidiaries in the form of Permitted Acquisitions so long as the Parent Borrower and its Subsidiaries are in compliance on a Pro Forma Basis with a Consolidated Total Net Leverage Ratio of at least 0.25:1.00 less than the then-applicable Consolidated Total Net Leverage Ratio that would otherwise be required under Section 10.1 determined for the most recently ended fiscal quarter of the Parent Borrower prior to such Permitted Acquisition (such Consolidated Total Net Leverage Ratio to be calculated after giving effect to such Permitted Acquisition and any Indebtedness incurred in connection therewith); provided that the Permitted Acquisition Consideration for any acquired Subsidiary that does not become a Subsidiary Guarantor (or the assets of which are not acquired by the either Borrower or a Subsidiary Guarantor) (x) shall not exceed $125,000,000 for any such acquisition (or series of related acquisitions) and (y) when taken together with the aggregate Permitted Acquisition Consideration for all such acquired businesses acquired after the Restatement Date pursuant to the proviso in clause (d) of the definition of “Permitted Acquisition” and this Section 11.3(c), shall not exceed $300,000,000 in the aggregate.
(d) Hedging Agreements not prohibited by Section 11.1;
(e) purchases of assets in the ordinary course of business;
(cf) investments Investments in the form of loans and advances to employees in the ordinary course of business, which, in the aggregate, do not exceed at any time $5,000,000;
(g) Investments in the form of (i) intercompany loans and advances permitted pursuant to Section 11.1(h) and (k) and (ii) equity or capital Investments made by (A) the US Parent Borrower or any of its Subsidiaries in any Credit Party or (B) any Subsidiary thereof that is not a Credit Party in any other Subsidiary that is not a Credit Party;
(h) Investments in the form of (i) intercompany loans and advances permitted pursuant to Section 11.1(l) and (ii) equity or capital investments made by any Credit Party in any Subsidiary which is not a Credit Party; provided that the aggregate amount of such equity or capital investments permitted pursuant to the foregoing clause (ii), together with any intercompany Indebtedness permitted pursuant to Section 11.1(l), in each case, incurred or made after the Restatement Date, shall not exceed, as of the date such Investment is made or increased, $225,000,000;
(i) so long as no Default or Event of Default (including, without limitation, a Change in Control) shall have occurred and be continuing or would result therefrom, Investments by the Parent Borrower or any of its Subsidiaries (other than any investment by the Parent Borrower or any of its Subsidiaries in the form of acquisitions of all or substantially all of the business or a line of business (whether by the acquisition of Capital Stock, assets or any combination thereof) of any other Person if each such acquisition meets all Person) not otherwise permitted hereunder paid solely with proceeds from the issuance of the following requirements (such acquisition being referred to herein as a “Permitted Domestic Acquisition”):
(i) the Person to be acquired shall be organized under the laws of the United States of America, or the assets to be acquired shall be located in the continental United States of America, and such Person shall be engaged in a business, or such assets shall be used in a business, permitted pursuant to Section 10.12;
(ii) the US Borrower or any Subsidiary (including any entity being acquired that becomes a Subsidiary) shall be the surviving Person and no Change of Control shall have been effected thereby;
(iii) the Person to be acquired shall not be subject to any material pending litigation which could reasonably be expected to have a Material Adverse Effect; [Second Amendment – SCP Pool Corporation] 86
(iv) prior to the closing of such acquisition, the acquisition is approved by the board of directors (or a majority of the holders of the Capital Stock of such Person) of the Person whose assets or Capital Stock are being acquired pursuant to such acquisition;
(v) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such proposed acquisition;
(vi) if the aggregate amount of Permitted Acquisition Consideration payable in cash with respect to such proposed acquisition or series of related acquisitions exceeds $50,000,000, the US Borrower shall have (A) demonstrated to the Administrative Agent pro forma compliance (as of the date of the proposed acquisition and after giving effect thereto and any Extensions of Credit made or to be made in connection therewith) with each covenant contained in, and in the manner set forth in, Article IX, (B) delivered to the Administrative Agent evidence of the approval referred to in clause (iv) above, and (C) delivered written notice of such proposed acquisition to the Administrative Agent and the Lenders, which notice shall include the proposed closing date of such proposed acquisition and a description of the acquisition in the form customarily prepared by the US Parent Borrower, not less than five (5) Business Days prior to such proposed closing date; and
(vii) the US Borrower shall have delivered to the Administrative Agent such documents reasonably requested by the Administrative Agent or the Required Lenders (through the Administrative Agent) pursuant to Section 8.11 to be delivered at the time required pursuant to Section 8.11.
(d) investments by the US Borrower or any Subsidiary thereof in the form of acquisitions of all or substantially all of the business or a line of business (whether by the acquisition of Capital Stock, assets or any combination thereof) of any other Person if each such acquisition meets all of the following requirements (such acquisition being referred to herein as a “Permitted Foreign Acquisition”):
(i) the Person to be acquired shall be organized under the laws of a jurisdiction other than the United States of America, or the assets to be acquired shall be located outside of the continental United States of America, and such Person shall be engaged in a business, or such assets shall be used in a business, permitted pursuant to Section 10.12;
(ii) the US Borrower or any Subsidiary (including any entity being acquired that becomes a Subsidiary) shall be the surviving Person and no Change of Control shall have been effected thereby;
(iii) the Person to be acquired shall not be subject to any material pending litigation which could reasonably be expected to have a Material Adverse Effect; [Second Amendment – SCP Pool Corporation] 87
(iv) prior to the closing of such acquisition, the acquisition is approved by the board of directors (or a majority of the holders of the Capital Stock of such Person) of the Person whose assets or Capital Stock are being acquired pursuant to such acquisition;
(v) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such proposed acquisition;
(vi) the aggregate amount of Permitted Acquisition Consideration payable (A) with respect to any Permitted Foreign Acquisition or series of related Permitted Foreign Acquisitions does not exceed $35,000,000 in cash and (B) with respect to all Permitted Foreign Acquisitions and the total amount of any transactions permitted under Sections 10.1(i), 10.3(i) and 10.5(f) does not exceed $75,000,000 in the aggregate during the term of this Agreement; and
(vii) if the aggregate amount of Permitted Acquisition Consideration payable in cash with respect to such proposed acquisition or series of related acquisitions exceeds $20,000,000, the US Borrower shall have (A) demonstrated to the Administrative Agent pro forma compliance (as of the date of the proposed acquisition and after giving effect thereto and any Extensions of Credit made or to be made in connection therewith) with each covenant contained in, and in the manner set forth in, Article IX, (B) delivered to the Administrative Agent evidence of the approval referred to in clause (iv) above, and (C) delivered written notice of such proposed acquisition to the Administrative Agent and the Lenders, which notice shall include the proposed closing date of such proposed acquisition and a description of the acquisition in the form customarily prepared by the US Borrower, not less than five (5) Business Days prior to such proposed closing date.
(e) Hedging Agreements permitted pursuant to Section 10.1;
(f) purchases of assets in the ordinary course of business;
(g) investments in the form of loans and advances to employees in the ordinary course of business, which, in the aggregate, do not exceed at any time $500,000;
(h) intercompany Indebtedness permitted pursuant to Section 10.1(h);
(i) the creation of new Foreign Subsidiaries, the investment in which, together with the Permitted Acquisition Consideration payable in connection with all Permitted Foreign Acquisitions and the total amount of any transactions permitted under Sections 10.1(i) and 10.5(f), does not exceed $75,000,000 in the aggregate during the term of this Agreement;
(j) the creation of Domestic Subsidiaries after the Closing Date so long as (i) each such Domestic Subsidiary shall comply with Section 8.11 and (ii) the creation of such Domestic Subsidiary is otherwise made in accordance with the terms and conditions of this Agreement (including, without limitation, this Section 10.3);
(k) equity investments (i) by the US Borrower in any Subsidiary Guarantor, (ii) by any Subsidiary in the US Borrower, (iii) by any Subsidiary in any Subsidiary Guarantor or (iv) by any Subsidiary that is not a Subsidiary Guarantor in any other Subsidiary that is not a Subsidiary Guarantor;
(l) so long as no Default or Event of Default has occurred or would result therefrom, the initial investment by the US Borrower and its Subsidiaries in a proposed joint venture previously described to the Administrative Agent in an aggregate amount not to exceed the lesser of (A) $40,000,000 or (B) the aggregate amount reasonably determined by the US Borrower and its Subsidiaries as necessary to initially capitalize such joint venture;
(m) other additional domestic investments not otherwise permitted pursuant to this Section incurred or made after the Restatement Date not exceeding to exceed, as of the date such Investment is made or increased, the greater of (A) $7,500,000 75,000,000 and (B) five percent (5%) of Consolidated Total Assets as of such date of determination (provided that in making such determination, such amount shall be calculated as the aggregate net balance of such loans, advances and equity or capital investments (as of such date of determination) as reduced by any repayments or distributions made with respect thereto (as of such date of determination)).
(k) Investments in any Fiscal Year; and
(n) so long as no Default or Event of Default has occurred or would result therefrom, the contribution by Pool Development LLC, a wholly-owned Subsidiary of the US Borrower, to the capital of Northpark in connection with any Corporate Center, L.L.C., a Louisiana limited liability company, in an aggregate amount not to exceed $4,000,000 in exchange for a fifty percent (50%) ownership interest in Northpark Corporate Center, L.L.C.Restructuring.
Appears in 1 contract
Limitations on Loans, Advances, Investments and Acquisitions. Purchase, own, invest in or otherwise acquire, directly or indirectly, any Capital Stock, interests in any partnership or joint venture (including, without limitation, the creation or capitalization of [Second Amendment – SCP Pool Corporation] 85 any Subsidiary), evidence of Indebtedness or other obligation or security, substantially all or a portion of the business or assets of any other Person or any other investment or interest whatsoever in any other Person, or make or permit to exist, directly or indirectly, any loans, advances or extensions of credit to, or any investment in cash or by delivery of property in, any Person except:
(a) (i) investments existing on the Closing Date in Subsidiaries, and (ii) the other loans, advances and investments existing on the Closing Date which are described on Schedule 10.37.03;
(b) investments in (i) marketable direct obligations issued or unconditionally guaranteed by the United States or any agency thereof maturing within one hundred twenty (120) days from the date of acquisition thereof, (ii) commercial paper maturing no more than one hundred twenty (120) days from the date of creation thereof and currently having the highest rating obtainable from either Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. S&P or Xxxxx’x Investors Service, Inc.Xxxxx’x, (iii) certificates of deposit maturing no more than one hundred twenty (120) days from the date of creation thereof issued by commercial banks incorporated under the laws of the United States, each having combined capital, surplus and undivided profits of not less than $500,000,000 and having a rating of “A” or better by a nationally recognized rating agency; provided, that the aggregate amount invested in such certificates of deposit shall not at any time exceed $5,000,000 7,500,000 for any one such certificate of deposit and $10,000,000 15,000,000 for any one such bank, (iv) time deposits maturing no more than thirty (30) days from the date of creation thereof with commercial banks or savings banks or savings and loan associations each having membership either in the FDIC or the deposits of which are insured by the FDIC and in amounts not exceeding the maximum amounts of insurance thereunder or thereunder, (v) demand deposit accounts maintained in the ordinary course of businessbusiness or (vi) any eurodollar deposits maturing no more than seven (7) days from the date of creation thereof issued by the Lender, an Affiliate of the Lender or commercial banks, each having combined capital, surplus and undivided profits of not less than $500,000,000 in an aggregate amount invested at any one time not to exceed the greater of (A) four and one-half percent (4.5%) of Consolidated Total Assets (determined at the time of incurrence thereof based on the financial data for the most recently ended Fiscal Year for which audited financial statements of the Borrower and its Subsidiaries are available), and (B) $30,000,000;
(c) investments by the US Borrower or any Subsidiary thereof in the form of acquisitions of all or substantially all of the business or a line of business (whether by the acquisition of Capital Stock, assets or any combination thereof) of any other Person if each such acquisition meets all of the following requirements (such acquisition being referred to herein as a “Permitted Domestic Acquisition”):
(i) the Person to be acquired shall be organized under the laws of the United States of America, or the assets to be acquired shall be located in the continental United States of America, and such Person shall be engaged in a business, or such assets shall be used in a business, permitted pursuant to Section 10.127.12;
(ii) the US Borrower or any Subsidiary (including any entity being acquired that becomes a Subsidiary) shall be the surviving Person and no Change of in Control shall have been effected thereby;
(iii) the Person to be acquired shall not be subject to any material pending litigation which could reasonably be expected to have a Material Adverse Effect; [Second Amendment – SCP Pool Corporation] 86;
(iv) prior to the closing of such acquisition, the acquisition is approved by the board of directors (or a majority of the holders of the Capital Stock of such Person) of the Person whose assets or Capital Stock are being acquired pursuant to such acquisition;
(v) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such proposed acquisition;
(vi) if the aggregate amount of Permitted Acquisition Consideration payable in cash with respect to such proposed acquisition or series of related acquisitions exceeds $50,000,00075,000,000, the US Borrower shall have (A) demonstrated to the Administrative Agent Lender pro forma compliance (as of the date of the proposed acquisition and after giving effect thereto and any Extensions of Credit Extension made or to be made in connection therewith or other Indebtedness incurred in connection therewith) with each covenant contained in, and in the manner set forth in, Article IXSection 7.13, (B) delivered to the Administrative Agent Lender evidence of the approval referred to in clause (iv) above, and (C) delivered written notice of such proposed acquisition to the Administrative Agent and the LendersLender, which notice shall include the proposed closing date of such proposed acquisition and a description of the acquisition in the form customarily prepared by the US Borrower, not less than five (5) Business Days prior to such proposed closing datedate (or such later time as may be agreed to by the Lender in its sole discretion); and
(vii) the US Borrower shall have delivered to the Administrative Agent Lender such documents reasonably requested by the Administrative Agent or the Required Lenders (through the Administrative Agent) Lender pursuant to Section 8.11 6.14 to be delivered at the time required pursuant to Section 8.116.14.
(d) investments by the US Borrower or any Subsidiary thereof in the form of acquisitions of all or substantially all of the business or a line of business (whether by the acquisition of Capital Stock, assets or any combination thereof) of any other Person if each such acquisition meets all of the following requirements (such acquisition being referred to herein as a “Permitted Foreign Acquisition”):
(i) the Person to be acquired shall be organized under the laws of a jurisdiction other than the United States of America, or the assets to be acquired shall be located outside of the continental United States of America, and such Person shall be engaged in a business, or such assets shall be used in a business, permitted pursuant to Section 10.127.12;
(ii) the US Borrower or any Subsidiary (including any entity being acquired that becomes a Subsidiary) shall be the surviving Person and no Change of in Control shall have been effected thereby;
(iii) the Person to be acquired shall not be subject to any material pending litigation which could reasonably be expected to have a Material Adverse Effect; [Second Amendment – SCP Pool Corporation] 87;
(iv) prior to the closing of such acquisition, the acquisition is approved by the board of directors (or a majority of the holders of the Capital Stock of such Person) of the Person whose assets or Capital Stock are being acquired pursuant to such acquisition;
(v) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such proposed acquisition;
(vi) the aggregate amount of Permitted Acquisition Consideration payable (A) with respect to any Permitted Foreign Acquisition or series of related Permitted Foreign Acquisitions does not exceed $35,000,000 50,000,000 in cash and (B) with respect to all Permitted Foreign Acquisitions and the total amount of any transactions permitted under Sections 10.1(i7.01(i), 10.3(i7.03(i) and 10.5(f7.05(f) does not exceed $75,000,000 100,000,000 in the aggregate during the term of this Agreementperiod from the Closing Date through and including the Maturity Date; and
(vii) if the aggregate amount of Permitted Acquisition Consideration payable in cash with respect to such proposed acquisition or series of related acquisitions exceeds $20,000,00035,000,000, the US Borrower shall have (A) demonstrated to the Administrative Agent Lender pro forma compliance (as of the date of the proposed acquisition and after giving effect thereto and any Extensions of Credit Extension made or to be made in connection therewith or other Indebtedness incurred in connection therewith) with each covenant contained in, and in the manner set forth in, Article IXSection 7.13, (B) delivered to the Administrative Agent Lender evidence of the approval referred to in clause (iv) above, and (C) delivered written notice of such proposed acquisition to the Administrative Agent and the LendersLender, which notice shall include the proposed closing date of such proposed acquisition and a description of the acquisition in the form customarily prepared by the US Borrower, not less than five (5) Business Days prior to such proposed closing datedate (or such later time as may be agreed to by the Lender in its sole discretion).
(e) Hedging Agreements Swap Contracts permitted pursuant to Section 10.17.01;
(f) purchases of assets in the ordinary course of business;
(g) investments in the form of loans and advances to employees in the ordinary course of business, which, in the aggregate, do not exceed at any time $500,000[Intentionally Omitted];
(h) intercompany Indebtedness permitted pursuant to Section 10.1(h7.01(h);
(i) the creation of new Foreign Subsidiaries or additional investments in existing Foreign Subsidiaries, the investment in which, together with the Permitted Acquisition Consideration payable in connection with all Permitted Foreign Acquisitions and the total amount of any transactions permitted under Sections 10.1(i7.01(i) and 10.5(f7.05(f), does not exceed $75,000,000 100,000,000 in the aggregate during the term of this Agreementperiod from the Closing Date through and including the Maturity Date;
(j) the creation of Domestic Subsidiaries after the Closing Date so long as (i) each such Domestic Subsidiary shall comply with Section 8.11 6.14 and (ii) the creation of such Domestic Subsidiary is otherwise made in accordance with the terms and conditions of this Agreement (including, without limitation, this Section 10.37.03);
(k) equity investments (i) by the US Borrower in any Subsidiary Guarantor, (ii) by any Subsidiary in the US Borrower, (iii) by any Subsidiary in any Subsidiary Guarantor or (iv) by any Subsidiary that is not a Subsidiary Guarantor in any other Subsidiary that is not a Subsidiary Guarantor;
(l) so long as no Default or Event of Default has occurred or would result therefrom, the initial investment by the US Borrower and its Subsidiaries in a proposed joint venture previously described to the Administrative Agent in an aggregate amount not to exceed the lesser of (A) $40,000,000 or (B) the aggregate amount reasonably determined by the US Borrower and its Subsidiaries as necessary to initially capitalize such joint venture;[Intentionally Omitted]; and
(m) other additional domestic investments not otherwise permitted pursuant to this Section not exceeding $7,500,000 20,000,000 in the aggregate in any Fiscal Year; and
(n) so long as no Default or Event of Default has occurred or would result therefrom, the contribution by Pool Development LLC, a wholly-owned Subsidiary of the US Borrower, to the capital of Northpark Corporate Center, L.L.C., a Louisiana limited liability company, in an aggregate amount not to exceed $4,000,000 in exchange for a fifty percent (50%) ownership interest in Northpark Corporate Center, L.L.C..
Appears in 1 contract
Samples: Credit Agreement (Pool Corp)
