Limitations on Loans, Advances, Investments and Acquisitions. Purchase, own, invest in or otherwise acquire, directly or indirectly, any Capital Stock, interests in any joint venture (including, without limitation, the creation or capitalization of 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: (i) investments in Subsidiaries outstanding on the Effective Date, (ii) ordinary course investments in Restaurant Partnerships consistent with past practice, (iii) investments in Subsidiaries formed or acquired after the Effective Date so long as Holdings and its Subsidiaries comply with the applicable provisions of SECTION 9.11 and such newly formed or acquired Subsidiary becomes a Subsidiary Guarantor, (iv) investments in the form of the other loans, advances and investments described on SCHEDULE 11.3 existing on the Effective Date and (v) investments in Subsidiary Guarantors; (b) investments in (i) marketable direct obligations issued or unconditionally guaranteed by the United States or any agency thereof maturing within one year from the date of acquisition thereof, (ii) commercial paper maturing no more than one year from the date of creation thereof and currently having a rating of at least P-1 if rated by Mxxxx'x and A-1 if rated by S&P, (iii) certificates of deposit and time deposits maturing no more than one year 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, (iv) securities issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition thereof, having one of the two highest ratings obtainable from either S&P or Mxxxx'x; (v) repurchase agreements secured by any one or more of the investments described in clauses (i), (ii) or (iii) of this clause (b), and (vi) shares of any so-called "money market fund" provided that such fund is registered under the Investment Company Act of 1940, has net assets of at least $100,000,000 and has an investment portfolio with an average maturity of 365 days or less; (c) investments by Holdings or any of its Subsidiaries in the form of Permitted Acquisitions; (d) investments in securities of trade creditors or customers received pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers in exchange for claims against such trade creditors or customers or in good faith settlement of delinquent obligations of such trade creditors and customers; (e) Hedging Agreements permitted pursuant to SECTION 11.1; (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 $1,000,000; (h) intercompany Indebtedness permitted pursuant to SECTION 11.1; (i) the acquisition of one or more notes, leases or other evidences of indebtedness of franchisees, and Guaranty Obligations with respect to franchisee obligations, in accordance with franchisee leasing or loan programs and investments in connection with (A) the conversion to notes or other restructuring of franchisee obligations, (B) making loans and advances to franchisees, and (C) acceptance of notes from franchisees in payment for goods and services provided by the Borrower and its Subsidiaries to such franchisees, in an aggregate amount not to exceed $5,000,000 for all such acquisitions, Guaranty Obligations or investments pursuant to this SECTION 11.3(i). (j) in the case of investments by Foreign Subsidiaries, substantially similar foreign equivalents of those Investments described in SECTION 11.3(b); (k) investments in the form of notes or other deferred payment obligations received as part of the consideration for Asset Dispositions in accordance with SECTION 11.5(f); and (l) other investments in any Person having an aggregate fair market value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other outstanding Investments made pursuant to this clause (l) since the Effective Date, not to exceed $10,000,000.
Appears in 1 contract
Samples: Credit Agreement (Restaurant Co)
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 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 (for purposes of this Section 11.3, the acquisition of a facility, the primary purpose of which is for the detention or housing of detainees, shall be deemed to constitute the acquisition of substantially all of the business or assets of any such 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 (which, for the avoidance of doubt, shall include any Guaranty Obligations for purposes of this Section 11.3) to, or any investment in cash or by delivery of property in, any Person except:
(a) (i) investments in or loans, advances or extensions of credit to, Subsidiaries outstanding to the extent that such investments, loans, advances or extension of credit are existing on the Effective DateClosing Date (or any refinancing thereof provided that the aggregate principal amount thereof is not increased), (ii) ordinary course investments in Restaurant Partnerships consistent with past practiceor loans, (iii) investments in advances or extensions of credit to, Restricted Subsidiaries formed or acquired after the Effective Date so long as Holdings the Borrower and its Subsidiaries comply with the applicable provisions of SECTION Section 9.11 and such newly with respect to Restricted Subsidiaries formed or acquired after the Closing Date, (iii) Permitted Acquisitions after the Closing Date so long as the Borrower and its Subsidiaries comply with the applicable provisions of Section 9.11; provided that any investment by the Borrower or any Restricted Subsidiary becomes in any Restricted Foreign Subsidiary must be in the form of a loan to such Restricted Foreign Subsidiary Guarantorwhich is pledged to the Administrative Agent pursuant to the Collateral Agreement, (iv) investments in the form Acquisition (together with any investments, loan advances or extensions of credit acquired as a result of the Acquisition) so long as the Borrower and its Subsidiaries comply with the applicable provisions of this Agreement with respect thereto including, without limitation, Section 9.11 and (v) the other loans, advances and investments described on SCHEDULE 11.3 Schedule 11.3(a) existing on the Effective Date and (v) investments in Subsidiary GuarantorsClosing Date;
(b) investments in (i) marketable direct obligations issued or unconditionally guaranteed by the United States or any agency thereof maturing within one year hundred twenty (120) days from the date of acquisition thereof, (ii) commercial paper maturing no more than one year hundred twenty (120) days from the date of creation thereof and currently having an “A-1” or higher rating from S&P or a “P-1” rating of at least P-1 if rated by Mxxxx'x and A-1 if rated by S&Pfrom Mxxxx’x, (iii) certificates of deposit and time deposits maturing no more than one year 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 Five Hundred Million Dollars ($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 Five Million Dollars ($5,000,000) for any one such certificate of deposit and Twenty Million Dollars ($20,000,000) for any one such bank, (iv) securities issued money market accounts with any financial institution whose long-term credit rating is not less than “AAA” by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof S&P and “Aaa” by Mxxxx’x and whose short-term credit rating is not less than “P-1” by Mxxxx’x and “A-1” by S&P, (v) time deposits maturing within one year no more than thirty (30) days from the date of acquisition creation thereof andwith 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, at the time of acquisition thereof, having one of the two highest ratings obtainable from (vi) municipal securities rated investment grade or better by either S&P or Mxxxx'x; (v) repurchase agreements secured by any one or more of the investments described in clauses (i), (ii) Mxxxx’x or (iiivii) with respect to any Foreign Subsidiary, deposit accounts held by such Foreign Subsidiary in local currency at local commercial banks or savings banks or savings and loan associations in the ordinary course of this clause (b), and (vi) shares of any so-called "money market fund" provided that such fund is registered under the Investment Company Act of 1940, has net assets of at least $100,000,000 and has an investment portfolio with an average maturity of 365 days or lessbusiness;
(c) investments by Holdings or any of its Subsidiaries in the form of Permitted Acquisitions;
(d) investments in securities of trade creditors or customers received pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers in exchange for claims against such trade creditors or customers or in good faith settlement of delinquent obligations of such trade creditors and customers;
(e) Hedging Agreements permitted pursuant to SECTION Section 11.1;
(fd) purchases of assets in the ordinary course of business;
(ge) investments to the extent they constitute an investment, contributions to and payments of benefits under any Employee Benefits Plan in existence as of the form Closing Date as required by the benefit commitment in such Employee Benefits Plan as of loans and advances to employees in the ordinary course of business, which, in the aggregate, do not exceed at any time $1,000,000Closing Date;
(hf) intercompany Indebtedness investments, loans, advances or extensions of credit in addition to those permitted pursuant to SECTION 11.1;
(i) the acquisition of one or more notes, leases or other evidences of indebtedness of franchisees, and Guaranty Obligations with respect to franchisee obligations, elsewhere in accordance with franchisee leasing or loan programs and investments in connection with (A) the conversion to notes or other restructuring of franchisee obligations, (B) making loans and advances to franchisees, and (C) acceptance of notes from franchisees in payment for goods and services provided by the Borrower and its Subsidiaries to such franchisees, this Section 11.3 in an aggregate amount not to exceed Five Million Dollars ($5,000,000 for all such acquisitions, Guaranty Obligations or investments pursuant to this SECTION 11.3(i).5,000,000) in the aggregate at any time outstanding;
(jg) investments in or loans, advances or extensions of credit to Unrestricted Subsidiaries, joint ventures and/or Other Consolidated Persons (but, in the case of investments Unrestricted Subsidiaries and joint ventures, only if the outstanding capital stock or other ownership interests of such Unrestricted Subsidiaries or joint ventures that are owned by Foreign the Borrower or any of its Restricted Subsidiaries, substantially similar foreign equivalents are directly owned either by the Borrower or a Restricted Subsidiary) in an aggregate amount not to exceed Ten Million Dollars ($10,000,000) for any Fiscal Year; provided that if the aggregate amount of those Investments described such investments, loans, advances and extensions of credit made in SECTION 11.3(bany Fiscal Year shall be less than Ten Million Dollars ($10,000,000), the difference shall be added to the amount of such investments, loans, advances and extensions of credit permitted pursuant to this Section 11.3(g) for the immediately succeeding (but not any other) Fiscal Year, and for purposes hereof, the amount of such investments, loans, advances and extensions of credit made during any Fiscal Year shall be deemed to have been made first from the amount permitted in such Fiscal Year pursuant to this Section 11.3(g) without giving effect to any such carryover from the preceding Fiscal Year and last from the carryover, if any, from the preceding Fiscal Year; provided further, that the aggregate amount of such investments, loans, advances and extensions of credit permitted to be made pursuant to this Section 11.3(g) during the term of this Agreement shall not exceed Twenty-Five Million Dollars ($25,000,000);
(kh) investments investments, loans, advances or extensions of credit resulting from Liens permitted under Section 11.2(i) and Guaranty Obligations permitted by Section 11.1(i);
(i) investments, loans, advances or extensions of credit made in connection with the form of notes or other deferred payment obligations received as part of the consideration for Asset Dispositions in accordance with SECTION 11.5(ffacility described on Schedule 11.3(i); and
(lj) other investments in or loans, advances or extensions of credit to, or acquisitions of, any Person having or Persons (or all or substantially all of the assets of any Person or Persons) in an aggregate fair market value amount (measured on except to the date each such Investment was extent made and without giving effect with Equity Consideration) not exceeding the Net Cash Proceeds from the offering of equity securities of the Borrower or any of its Restricted Subsidiaries after the Acquisition Date not required to subsequent changes in valuebe used for prepayments under Section 4.4(b)(ii), when taken together with all other outstanding Investments made pursuant but only to this clause the extent that such Net Cash Proceeds are not used for Permitted Acquisitions and do not constitute a utilization of the Additional Capital Expenditure Basket in excess of Seventy-Five Million Dollars (l) since the Effective Date, not to exceed $10,000,00075,000,000).
Appears in 1 contract
Samples: Credit Agreement (Geo Group Inc)
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 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 Advances to, or any investment in cash or by delivery of property in, any Person except:
(a) investments, loans and advances (i) investments in Subsidiaries outstanding which such Subsidiaries are in existence on the Effective Original Closing Date, and which comply with the terms of Section 11.1, if applicable; provided that neither the Borrower, nor any Subsidiary thereof, shall make any new investments, loans or advances in or to Pacific Sierra after the Original Closing Date, (ii) ordinary course investments in Restaurant Partnerships consistent with past practice, (iii) investments in Subsidiaries formed or acquired after the Effective Original Closing Date so long as Holdings the Borrower and its Subsidiaries comply with the applicable provisions of SECTION Section 9.11 and such newly formed or acquired Subsidiary becomes a Subsidiary GuarantorSection 11.3(e), as applicable, and (iviii) investments in the form of the other loans, advances and investments described on SCHEDULE Schedule 11.3 existing on the Effective Date and (v) investments in Subsidiary GuarantorsOriginal Closing Date;
(b) investments in promissory notes from officers or employees of the Borrower or a Subsidiary for stock issued to such officers or employees pursuant to the Stock Incentive Plan;
(c) investments in (i) marketable direct obligations issued or unconditionally guaranteed by the United States of America or any agency thereof maturing within one year hundred twenty (120) days from the date of acquisition thereof, (ii) commercial paper maturing no more than one year 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 rating division of at least P-1 if rated by Mxxxx'x and A-1 if rated by S&PThe McGraw-Hill Companies, Inc. or Moody's Investors Service, Inc., (iii) certificates xxxxxxxxxxes of deposit and time deposits maturing no more maturixx xx xore than one year 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 $500,000,000500,000,000 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) securities issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof time deposits maturing within one year no more than thirty (30) days from the date of acquisition creation thereof andwith 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, at the time of acquisition thereof, having one all of the two highest ratings obtainable from either S&P foregoing investments, "Cash Equivalents";
(d) loans and advances to officers and employees not otherwise permitted pursuant to Section 11.3(c) in the ordinary course of business as part of a compensation package or Mxxxx'x; for business expenses (vexcluding travel and related expenses) repurchase agreements secured by any one or more of the investments described in clauses an aggregate outstanding amount not to exceed (i), ) $100,000 per person or (ii) or (iii) of this clause (b)$1,000,000, and (vi) shares of at any so-called "money market fund" provided that such fund is registered under the Investment Company Act of 1940, has net assets of at least $100,000,000 and has an investment portfolio with an average maturity of 365 days or less;time; and
(ce) investments by Holdings the 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 the Borrower and its Subsidiaries promptly comply with Section 9.11 hereof (each, a "Permitted AcquisitionsAcquisition"); provided that:
(i) the Person to be acquired shall be a going concern, engaged in a business, or the assets to be acquired shall be used in a business, similar or complimentary to the line of business of the Borrower and its Subsidiaries, and such acquisition shall have been approved by the board of directors or equivalent governing body (or the shareholders) of the seller and/or the Person to be acquired;
(dii) investments the Borrower or its Subsidiary, as applicable, shall be the surviving Person and no Change in securities of trade creditors or customers received pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers in exchange for claims against such trade creditors or customers or in good faith settlement of delinquent obligations of such trade creditors and customersControl shall have been effected thereby;
(eiii) the Borrower or its Subsidiary, as applicable, is in compliance with the covenants contained in Article X after giving effect to such acquisition;
(iv) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to the acquisition;
(v) the Borrower shall demonstrate, to the reasonable satisfaction of the Administrative Agent (A) pro forma compliance with the covenants contained in Sections 10.1, 10.2, 10.4 and 10.5 as of the most recent month and for which financial information is available (as reasonably determined by the Administrative Agent) after giving effect to the proposed acquisition, and (B) the sum of (I) Total Leverage Ratio, after giving effect to the acquisition on a pro forma basis plus (II) an additional margin ratio of 0.25 to 1.0 does not exceed the maximum Total Leverage Ratio then permitted pursuant to Section 10.1;
(vi) the Borrower shall have delivered written notice of such proposed acquisition to the Administrative Agent, which notice shall include the proposed closing date of the acquisition, not less than thirty (30) calendar days prior to such proposed closing date;
(vii) to the extent requested by the Administrative Agent, the Borrower shall have delivered to the Administrative Agent copies of (A) the Permitted Acquisition Documents, which shall be in form and substance reasonably satisfactory to the Administrative Agent and shall be delivered to the Administrative Agent promptly upon the finalization thereof and (B) the Permitted Acquisition Diligence Information, which shall be in form and substance reasonably satisfactory to the Administrative Agent, not less than fifteen (15) calendar days prior to the proposed closing date of such acquisition;
(viii) the Borrower shall have at least $15,000,000 in availability under the Revolving Credit Facility after giving effect to the proposed acquisition;
(ix) the Person to be acquired shall demonstrate positive EBITDA for the most recent two (2) year period then ended, both prior to the acquisition and after giving effect thereto, by providing the Administrative Agent and Lenders copies of the most recent financial statements and projections, all in form and substance reasonably satisfactory to the Administrative Agent and Lenders; and
(x) prior to the closing of the proposed acquisition, the Borrower shall have identified all requested Permitted Acquisition EBITDA Adjustments to the Administrative Agent in writing, and the Administrative Agent shall have approved, in its sole discretion, any such requested Permitted Acquisition EBITDA Adjustments, in connection with such Permitted Acquisition; provided that such Permitted Acquisition EBITDA Adjustments must not exceed twenty percent (20%) of the acquisition target's actual EBITDA for the twelve (12) months prior to the acquisition.
(xi) the Borrower shall have obtained the prior written consent of the Required Lenders prior to the consummation of any acquisition, or series of related acquisitions:
(A) if the aggregate cash consideration to be paid in connection with such proposed acquisition or series of related acquisitions would exceed the sum of (I) $25,000,000 plus (II) an amount equal to the lesser of:
(1) the difference between (X) the remaining fifty percent (50%) of the net cash proceeds from the issuance of equity following the Amendment and Restatement Closing Date not required to be used to repay the Loans pursuant to Section 4.4(b)(ii) (the "Available Proceeds") and (Y) the amount of such Available Proceeds that have been used to (i) consummate a Permitted Acquisition or (ii) repay outstanding indebtedness; and
(2) the actual amount of cash and cash equivalents on the Borrower's balance sheet at the time of such proposed acquisition; provided that in no event shall the amount added pursuant to this clause (II) exceed $50,000,000 with respect to any such equity issuance; or
(B) if the aggregate total consideration to be paid in connection with such proposed acquisition or series of related acquisitions would exceed the sum of (I) $50,000,000 plus (II) an amount equal to the lesser of:
(1) the difference between (X) the remaining fifty percent (50%) of net cash proceeds from the issuance of equity following the Amendment and Restatement Closing Date not required to be used to repay the Loans pursuant to Section 4.4(b)(ii) (the "Available Proceeds") and (Y) the amount of such Available Proceeds that have been used to (i) consummate a Permitted Acquisition or (ii) repay outstanding indebtedness; and
(2) the actual amount of cash and cash equivalents on the Borrower's balance sheet at the time of such proposed acquisition; provided that in no event shall the amount added pursuant to this clause (II) exceed $50,000,000 with respect to any such equity issuance;
(f) Hedging Agreements permitted pursuant to SECTION Section 11.1;
(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 $1,000,000;Signal Acquisition; and
(h) intercompany Indebtedness permitted pursuant to SECTION 11.1;
(i) the acquisition of one or more notes, leases or other evidences of indebtedness of franchisees, and Guaranty Obligations with respect to franchisee obligations, in accordance with franchisee leasing or loan programs and investments in connection with (A) the conversion to notes or other restructuring of franchisee obligations, (B) making loans and advances to franchisees, and (C) acceptance of notes from franchisees in payment for goods and services provided by the Borrower and its Subsidiaries to such franchisees, in an aggregate amount not to exceed $5,000,000 for all such acquisitions, Guaranty Obligations or investments pursuant to this SECTION 11.3(i)Software Acquisition.
(j) in the case of investments by Foreign Subsidiaries, substantially similar foreign equivalents of those Investments described in SECTION 11.3(b);
(k) investments in the form of notes or other deferred payment obligations received as part of the consideration for Asset Dispositions in accordance with SECTION 11.5(f); and
(l) other investments in any Person having an aggregate fair market value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other outstanding Investments made pursuant to this clause (l) since the Effective Date, not to exceed $10,000,000.
Appears in 1 contract
Samples: Credit Agreement (Veridian 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 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:
(ia) investments in (i) Subsidiaries outstanding existing on the Effective Closing Date, (ii) ordinary course investments in Restaurant Partnerships consistent with past practice, (iii) investments in Subsidiaries formed or acquired after the Effective Closing Date so long as Holdings the Borrowers and its their Subsidiaries comply with the applicable provisions of SECTION Section 9.11 and such newly formed or acquired Subsidiary becomes a Subsidiary Guarantor, the other terms and provisions of this Agreement and (iviii) investments in the form of the other loans, advances and investments described on SCHEDULE Schedule 11.3 existing on the Effective Date and (v) investments in Subsidiary GuarantorsClosing Date;
(b) investments in (i) marketable direct obligations issued or unconditionally guaranteed by the United States of America or any agency or instrumentality thereof or by the Federal Home Loan Mortgage Corporation, Government National Mortgage Association, Federal Farm Credit Bank, Federal Home Loan Mortgage Corp., Federal Housing Administration, Student Loan Marketing Association or the Tennessee Valley Authority, maturing within one year ten (10) years from the date of acquisition thereof, (ii) obligations of state and local governments or agencies thereof (including variable rate demand notes and auction rate securities), maturing or resetting within three (3) years from the date of acquisition thereof, (iii) commercial paper maturing no more than one year two hundred seventy (270) days from the date of creation thereof and currently having a rating of at least P-1 if rated by Mxxxx'x and A-1 if rated by S&P“A-2” or better from Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. or a rating of “P2” or better from Xxxxx’x Investors Service, Inc., (iiiiv) certificates of deposit and time deposits maturing no more than one year 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 $500,000,000500,000,000 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 $10,000,000 for any one such certificate of deposit and $25,000,000 for any one such bank, (ivv) securities issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof money market mutual funds, maturing within one year from the date of acquisition thereof and, at the time of acquisition thereof, having one provided that the asset value of the two highest ratings obtainable from either S&P issue shall exceed $1,000,000,000, (vi) corporate notes (including variable rate demand notes, auction rate securities and Eurodollar notes) issued by a corporation (except an Affiliate of Borrowers) organized under the laws of any State of the United States of America or Mxxxx'x; the District of Columbia and rated at least A-2 by Standard & Poor’s Ratings Services or at least A by Xxxxx’x Investors Service, Inc., (vvii) repurchase obligations with a term of not more than thirty (30) days for underlying securities of the types described in clause (i) above entered into with any financial institution having combined capital and surplus and undivided profits of not less than $500,000,000, (viii) repurchase agreements secured and reverse repurchase agreements relating to marketable direct obligations issued or unconditionally guaranteed by the United States of America or issued by any one or more governmental agency thereof and backed by the full faith and credit of the United States of America, in each case maturing within one year or less from the date of acquisition (provided that the terms of such agreements comply with the guidelines set forth in the Federal Financial Agreements of Depository Institutions with Securities Dealers and Others, as adopted by the Comptroller of the Currency on October 31, 1985), (ix) 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, and (x) investments in money market funds and mutual funds which invest substantially all of their assets in securities of the types described in clauses (i), ) through (iiix) or (iii) of this clause (b), and (vi) shares of any so-called "money market fund" provided that such fund is registered under the Investment Company Act of 1940, has net assets of at least $100,000,000 and has an investment portfolio with an average maturity of 365 days or lessabove;
(c) investments by Holdings or any of its Subsidiaries in the form of Permitted Acquisitionsthe acquisition 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 (i) no Default or Event of Default then exists or would be created thereby, (ii) the Borrowers have delivered to the Administrative Agent a certificate of a Responsible Officer (on behalf of the Borrowers) demonstrating pro forma compliance with the covenants contained in Article X both before and after giving effect to such acquisition, and (iii) the aggregate consideration (including cash and non-cash consideration, whether in the form of earned-out payments or other deferred payments) and any assumption of liabilities does not exceed (A) $75,000,000 for any single acquisition or an aggregate of $250,000,000 for all acquisitions from the date hereof through the later of (x) the Revolving Credit Termination Date or (y) the Term Loan Termination Date so long as the Leverage Ratio is less than 3.25 to 1.00 immediately before and immediately after giving effect to such acquisition or (B) $25,000,000 for any single acquisition or an aggregate of $100,000,000 for all acquisitions from the date hereof through the later of (x) the Revolving Credit Termination Date or (y) the Term Loan Termination Date so long as the Leverage Ratio is greater than or equal to 3.25 to
1. 00 immediately before and immediately after giving effect to such acquisition, without the prior written consent of the Required Lenders;
(d) investments in securities of trade creditors or customers received pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers in exchange for claims against such trade creditors or customers or in good faith settlement of delinquent obligations of such trade creditors and customers;
(e) Hedging Agreements permitted pursuant to SECTION Section 11.1;
(fe) purchases of assets in the ordinary course of business;
(gf) investments consisting of extensions of credit in the form nature of loans and advances to employees accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, which, in the aggregate, do not exceed at any time $1,000,000;
(h) intercompany Indebtedness permitted pursuant to SECTION 11.1;
(i) the acquisition of one or more notes, leases or other evidences of indebtedness of franchisees, and Guaranty Obligations with respect to franchisee obligations, in accordance with franchisee leasing or loan programs and investments received in connection with (A) satisfaction or partial satisfaction thereof from financially troubled account debtors to the conversion extent reasonably necessary to notes or other restructuring of franchisee obligations, (B) making loans and advances to franchisees, and (C) acceptance of notes from franchisees in payment for goods and services provided by the Borrower and its Subsidiaries to such franchisees, in an aggregate amount not to exceed $5,000,000 for all such acquisitions, Guaranty Obligations or investments pursuant to this SECTION 11.3(i).
(j) in the case of investments by Foreign Subsidiaries, substantially similar foreign equivalents of those Investments described in SECTION 11.3(b);
(k) investments in the form of notes or other deferred payment obligations received as part of the consideration for Asset Dispositions in accordance with SECTION 11.5(f)prevent loss; and
(lg) other investments not exceeding $50,000,000 in the aggregate in any Person having an aggregate fair market value (measured on Fiscal Year of the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other outstanding Investments made pursuant to this clause (l) since the Effective Date, not to exceed $10,000,000Borrowers.
Appears in 1 contract
Samples: Credit Agreement (Belk 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 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:
(i) investments existing on the Closing Date in Subsidiaries outstanding existing on the Effective Date, Closing Date (other than the Mexican Borrower);
(ii) ordinary course the other loans, advances or extensions of credit and investments in Restaurant Partnerships consistent with past practiceexisting on the Closing Date (other than loans, advances, extensions of credit and investments to, or in, the Mexican Borrower) and described on Schedule 11.3(a);
(iii) loans, advances, extensions of credit and investments in made after the Closing Date to, or in, (A) Restricted Subsidiaries formed or acquired after the Effective Closing Date and (B) Restricted Subsidiaries existing on the Closing Date (other than the Mexican Borrower), so 126 long as Holdings as, in each case, the Canadian Borrower and its Subsidiaries comply with the applicable provisions of SECTION 9.11 Section 9.11;
(iv) loans, advances, extensions of credit and such newly investments made after the Closing Date to, or in, (A) Unrestricted Subsidiaries formed or acquired Subsidiary becomes a Subsidiary Guarantor, after the Closing Date or (ivB) investments in the form of the other loans, advances and investments described on SCHEDULE 11.3 Unrestricted Subsidiaries existing on the Effective Closing Date, so long as, in each case, the Canadian Borrower and its Subsidiaries comply with the applicable provisions of Section 9.11; and provided that the aggregate amount of all loans, advances, extensions of credit and investments made after the Closing Date and to, or in, Unrestricted Subsidiaries or any Restricted Subsidiary that is not a Full Credit Party (vother than the Mexican Borrower) investments in Subsidiary Guarantorsmade pursuant to this Section 11.3(a) shall not at any time exceed an aggregate amount of $30,000,000 on any date of determination;
(b) investments by the Canadian Borrower and its Restricted Subsidiaries in any Subsidiary SPE solely used to effect a Permitted Asset Securitization;
(c) [***];
(d) investments by the Canadian Borrower and its Restricted Subsidiaries in (i) marketable direct obligations issued or unconditionally guaranteed by the United States or Canada or any agency thereof maturing within one year hundred twenty (120) days from the date of acquisition thereof, (ii) commercial paper maturing no more than one year hundred twenty (120) days from the date of creation thereof and currently having a rating of rated at least P-1 if rated A-2 by Mxxxx'x and A-1 if rated Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc. or P-2 by S&PMoody's Investors Service, Inc., (iiixxx) certificates xxxtificates of deposit and time deposits maturing no more maturixx xx xore than one year hundred twenty (120) days from the date of creation thereof issued by any Lender or commercial banks incorporated under the laws of the United StatesStates or any state thereof, under the laws of Canada or any province thereof, or any country that is a member of the Organization for Economic Cooperation and Development, each having combined capital, surplus and undivided profits of not less than $500,000,000500,000,000 and having a rating of "A" or better by a nationally recognized rating agency, (iv) securities issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof time deposits maturing within one year no more than thirty (30) days from the date of acquisition creation thereof andwith any Lender or 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, at the time of acquisition thereof, having one of the two highest ratings obtainable from either S&P or Mxxxx'x; (v) repurchase agreements secured by any one or more demand deposit accounts maintained in the ordinary course of the investments described in clauses (i)business, (ii) or (iii) of this clause (b), and (vi) shares of investments by the Canadian Borrower and its Restricted Subsidiaries that are similar to the foregoing in any so-called "country outside the United States in which such Person is organized, or (vii) money market fund" provided mutual or similar funds that such fund is registered under the Investment Company Act of 1940, has net assets of invest at least $100,000,000 and has an investment portfolio with an average maturity 95% in assets satisfying the requirements of 365 days or lessclauses (i)-(vi) above (all of the foregoing investments "Cash Equivalents");
(ce) investments by Holdings or any of the Canadian Borrower and its Restricted Subsidiaries in the form of Permitted Acquisitions;
(df) investments in securities extensions of trade creditors or customers received pursuant to any plan of reorganization or similar arrangement upon credit made by the bankruptcy or insolvency of such trade creditors or customers in exchange for claims against such trade creditors or customers or in good faith settlement of delinquent obligations of such trade creditors Canadian Borrower and customers;
(e) Hedging Agreements permitted pursuant to SECTION 11.1;
(f) purchases of assets its Restricted Subsidiaries in the ordinary course of business;
(g) investments by the Canadian Borrower and its Restricted Subsidiaries in Hedging Agreements permitted pursuant to Section 11.1(b);
(h) purchases, leases or licenses of assets made by the Canadian Borrower and its Restricted Subsidiaries in the form ordinary course of loans business;
(i) loans, advances and advances extensions of credit made by the Canadian Borrower and its Restricted Subsidiaries to employees in the ordinary course of business, which, in the aggregate, do not exceed at any time $1,000,000;
(hj) (i) loans, advances and extensions of credit in the form of intercompany Indebtedness permitted pursuant to SECTION 11.1;
Sections 11.1(h) and (in) the acquisition of one or more notes, leases or other evidences of indebtedness of franchisees, and Guaranty Obligations with respect to franchisee obligations, in accordance with franchisee leasing or loan programs and (ii) investments in connection with any Full Credit Party (A) including investments in any Restricted Subsidiary that is not a Credit Party (to the conversion extent necessary to notes or other restructuring distribute such investment to the recipient Full Credit Party); provided that such Restricted Subsidiary must distribute the full amount of franchisee obligations, (B) making loans and advances to franchisees, and (C) acceptance of notes from franchisees in payment for goods and services provided by the Borrower and its Subsidiaries such investment to such franchisees, in an aggregate amount not Full Credit Party to exceed $5,000,000 for all such acquisitions, Guaranty Obligations or investments pursuant to this SECTION 11.3(i).
(j) in the case of investments extent required by Foreign Subsidiaries, substantially similar foreign equivalents of those Investments described in SECTION 11.3(bSection 11.13);
(k) so long as the Mexican Guaranty Agreement is in full force and effect:
(i) the loans, advances, extensions of credit and investments existing on the Closing Date made by the Canadian Borrower and its Restricted Subsidiaries to, or in, the Mexican Borrower and described on Schedule 11.3(k); and
(ii) loans, advances, extensions of credit and investments made on or after the Closing Date by the Canadian Borrower and its Restricted Subsidiaries to, or in, the Mexican Borrower (including loans, advances and extensions of credit in the form of notes or other deferred payment obligations received as part of the consideration for Asset Dispositions intercompany Indebtedness permitted pursuant to Section 11.1(p)) in accordance with SECTION 11.5(f)an aggregate outstanding amount at any time not to exceed $75,000,000; and
(l) other additional loans, advances, extensions of credit and investments made by the Canadian Borrower and its Restricted Subsidiaries not otherwise permitted pursuant to this Section not exceeding in any Person having an aggregate fair market value amount during any Fiscal Year equal to five percent (measured on 5%) of the date each such Investment was made total assets of the Canadian Borrower and without giving effect to subsequent changes in value), when taken together with all other outstanding Investments its Subsidiaries as of the last day of the immediately preceding Fiscal Year; provided that the maximum amount of investments made pursuant to this clause Section 11.3(l) in any Fiscal Year shall be reduced to $25,000,000 for such Fiscal Year when the Total Leverage Ratio is equal to or greater than 2.00 to 1.00 as of the last day of the immediately prior Fiscal Year. For the purposes of this Section 11.3, the "amount" of any loan, advance, extension of credit or investment made by any Person or Persons (lcollectively, the "Investors") since in any other Person or Persons (collectively, the Effective Date"Recipient") shall be:
(i) with respect to any loans, not advances or extensions of credit made by any Investor to exceed $10,000,000.any Recipient, an amount equal to (A) the principal amount of loans, advances and extensions of credit made to the Recipient, directly or indirectly, by the Investors less 128
Appears in 1 contract
Samples: Credit Agreement (Cott Corp /Cn/)
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 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:
(ia) investments in (i) Subsidiaries outstanding existing on the Effective Closing Date, (ii) ordinary course investments in Restaurant Partnerships consistent with past practice, (iii) investments in Subsidiaries formed or acquired after the Effective Closing Date so long as Holdings the Borrowers and its their Subsidiaries comply with the applicable provisions of SECTION Section 9.11 and such newly formed or acquired Subsidiary becomes a Subsidiary Guarantor, the other terms and provisions of this Agreement and (iviii) investments in the form of the other loans, advances and investments described on SCHEDULE Schedule 11.3 existing on the Effective Date and (v) investments in Subsidiary GuarantorsClosing Date;
(b) investments in (i) marketable direct obligations issued or unconditionally guaranteed by the United States of America or any agency or instrumentality thereof or by the Federal Home Loan Mortgage Corporation, Government National Mortgage Association, Federal Farm Credit Bank, Federal Home Loan Mortgage Corp., Federal Housing Administration, Student Loan Marketing Association or the Tennessee Valley Authority, maturing within one year ten (10) years from the date of acquisition thereof, (ii) obligations of state and local governments or agencies thereof (including variable rate demand notes and auction rate securities), maturing or resetting within three (3) years from the date of acquisition thereof, (iii) commercial paper maturing no more than one year two hundred seventy (270) days from the date of creation thereof and currently having a rating of at least P-1 if rated by Mxxxx'x and A-1 if rated by S&P“A-2” or better from Standard & Poor’s Ratings Services, a division of The MxXxxx-Xxxx Companies, Inc. or a rating of “P2” or better from Mxxxx’x Investors Service, Inc., (iiiiv) certificates of deposit and time deposits maturing no more than one year 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 $500,000,000500,000,000 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 $10,000,000 for any one such certificate of deposit and $25,000,000 for any one such bank, (ivv) securities issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof money market mutual funds, maturing within one year from the date of acquisition thereof and, at the time of acquisition thereof, having one provided that the asset value of the two highest ratings obtainable from either S&P issue shall exceed $1,000,000,000, (vi) corporate notes (including variable rate demand notes, auction rate securities and Eurodollar notes) issued by a corporation (except an Affiliate of Borrowers) organized under the laws of any State of the United States of America or Mxxxx'x; the District of Columbia and rated at least A-2 by Standard & Poor’s Ratings Services or at least A by Mxxxx’x Investors Service, Inc., (vvii) repurchase obligations with a term of not more than thirty (30) days for underlying securities of the types described in clause (i) above entered into with any financial institution having combined capital and surplus and undivided profits of not less than $500,000,000, (viii) repurchase agreements secured and reverse repurchase agreements relating to marketable direct obligations issued or unconditionally guaranteed by the United States of America or issued by any one or more governmental agency thereof and backed by the full faith and credit of the United States of America, in each case maturing within one year or less from the date of acquisition (provided that the terms of such agreements comply with the guidelines set forth in the Federal Financial Agreements of Depository Institutions with Securities Dealers and Others, as adopted by the Comptroller of the Currency on October 31, 1985), (ix) 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, and (x) investments in money market funds and mutual funds which invest substantially all of their assets in securities of the types described in clauses (i), ) through (iiix) or (iii) of this clause (b), and (vi) shares of any so-called "money market fund" provided that such fund is registered under the Investment Company Act of 1940, has net assets of at least $100,000,000 and has an investment portfolio with an average maturity of 365 days or lessabove;
(c) investments by Holdings or any of its Subsidiaries in the form of Permitted Acquisitionsthe acquisition 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 (i) no Default or Event of Default then exists or would be created thereby, (ii) the Borrowers have delivered to the Administrative Agent a certificate of a Responsible Officer (on behalf of the Borrowers) demonstrating pro forma compliance with the covenants contained in Article X both before and after giving effect to such acquisition, and (iii) the aggregate consideration (including cash and non-cash consideration, whether in the form of earned-out payments or other deferred payments) and any assumption of liabilities does not exceed (A) $75,000,000 for any single acquisition or an aggregate of $250,000,000 for all acquisitions from the date hereof through the later of (x) the Revolving Credit Termination Date or (y) the Term Loan Termination Date so long as the Leverage Ratio is less than 3.25 to 1.00 before and immediately after giving effect to such acquisition or (B) $25,000,000 for any single acquisition or an aggregate of $100,000,000 for all acquisitions from the date hereof through the later of (x) the Revolving Credit Termination Date or (y) the Term Loan Termination Date so long as the Leverage Ratio is greater than or equal to 3.25 to 1.00 before or immediately after giving effect to such acquisition, without the prior written consent of the Required Lenders;
(d) investments in securities of trade creditors or customers received pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers in exchange for claims against such trade creditors or customers or in good faith settlement of delinquent obligations of such trade creditors and customers;
(e) Hedging Agreements permitted pursuant to SECTION Section 11.1;
(fe) purchases of assets in the ordinary course of business;
(gf) investments consisting of extensions of credit in the form nature of loans and advances to employees accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, whichand investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary to prevent loss;
(g) the Parisian Acquisition, in so long as the aggregate, do Leverage Ratio before and immediately after giving effect to such acquisition does not exceed at any time $1,000,000;3.25 to 1.00; and
(h) intercompany Indebtedness permitted pursuant to SECTION 11.1;
(i) the acquisition of one or more notes, leases or other evidences of indebtedness of franchisees, and Guaranty Obligations with respect to franchisee obligations, in accordance with franchisee leasing or loan programs and investments in connection with (A) the conversion to notes or other restructuring of franchisee obligations, (B) making loans and advances to franchisees, and (C) acceptance of notes from franchisees in payment for goods and services provided by the Borrower and its Subsidiaries to such franchisees, in an aggregate amount not to exceed exceeding $5,000,000 for all such acquisitions, Guaranty Obligations or investments pursuant to this SECTION 11.3(i).
(j) 50,000,000 in the case of investments by Foreign Subsidiaries, substantially similar foreign equivalents of those Investments described aggregate in SECTION 11.3(b);
(k) investments in the form of notes or other deferred payment obligations received as part any Fiscal Year of the consideration for Asset Dispositions in accordance with SECTION 11.5(f); and
(l) other investments in any Person having an aggregate fair market value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other outstanding Investments made pursuant to this clause (l) since the Effective Date, not to exceed $10,000,000Borrowers.
Appears in 1 contract
Samples: Credit Agreement (Belk Inc)
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 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:
(ia) investments in (i) Subsidiaries outstanding existing on the Effective Closing Date, (ii) ordinary course investments in Restaurant Partnerships consistent with past practice, (iii) investments in Subsidiaries formed or acquired after the Effective Closing Date so long as Holdings the Borrowers and its their Subsidiaries comply with the applicable provisions of SECTION 9.11 Section 8.11 and such newly formed or acquired Subsidiary becomes a Subsidiary Guarantor, the other terms and provisions of this Agreement and (iviii) investments in the form of the other loans, advances and investments described on SCHEDULE 11.3 Schedule 10.3 existing on the Effective Date and (v) investments in Subsidiary GuarantorsClosing Date;
(b) investments in (i) marketable direct obligations issued or unconditionally guaranteed by the United States of America or any agency or instrumentality thereof or by the Federal Home Loan Mortgage Corporation, Government National Mortgage Association, Federal Farm Credit Bank, Federal Home Loan Mortgage Corp., Federal Housing Administration, Student Loan Marketing Association or the Tennessee Valley Authority, maturing within one year ten (10) years from the date of acquisition thereof, (ii) obligations of state and local governments or agencies thereof (including variable rate demand notes and auction rate securities), maturing or resetting within three (3) years from the date of acquisition thereof, (iii) commercial paper maturing no more than one year two hundred seventy (270) days from the date of creation thereof and currently having a rating of at least P-1 if rated by Mxxxx'x and A-1 if rated by S&P"A-2" or better from Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. or a rating of "P2" or better from Xxxxx'x Investors Service, Inc., (iiiiv) certificates of deposit and time deposits maturing no more than one year 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 $500,000,000500,000,000 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 $10,000,000 for any one such certificate of deposit and $25,000,000 for any one such bank, (ivv) securities issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof money market mutual funds, maturing within one year from the date of acquisition thereof and, at the time of acquisition thereof, having one provided that the asset value of the two highest ratings obtainable from either S&P issue shall exceed $1,000,000,000, (vi) corporate notes (including variable rate demand notes, auction rate securities and Eurodollar notes) issued by a corporation (except an Affiliate of Borrowers) organized under the laws of any State of the United States of America or Mxxxx'x; the District of Columbia and rated at least A-2 by Standard & Poor's Ratings Services or at least A by Xxxxx'x Investors Service, Inc., (vvii) repurchase obligations with a term of not more than thirty (30) days for underlying securities of the types described in clause (i) above entered into with any financial institution having combined capital and surplus and undivided profits of not less than $500,000,000, (viii) repurchase agreements secured and reverse repurchase agreements relating to marketable direct obligations issued or unconditionally guaranteed by the United States of America or issued by any one or more governmental agency thereof and backed by the full faith and credit of the United States of America, in each case maturing within one year or less from the date of acquisition (provided that the terms of such agreements comply with the guidelines set forth in the Federal Financial Agreements of Depository Institutions with Securities Dealers and Others, as adopted by the Comptroller of the Currency on October 31, 1985), (ix) 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, and (x) investments in money market funds and mutual funds which invest substantially all of their assets in securities of the types described in clauses (i), ) through (iiix) or (iii) of this clause (b), and (vi) shares of any so-called "money market fund" provided that such fund is registered under the Investment Company Act of 1940, has net assets of at least $100,000,000 and has an investment portfolio with an average maturity of 365 days or less;above.
(c) investments by Holdings or any of its Subsidiaries in the form of Permitted Acquisitionsthe acquisition 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 (i) no Default or Event of Default then exists or would be created thereby, (ii) the Borrowers have delivered to the Administrative Agent a certificate of a Responsible Officer (on behalf of the Borrowers) demonstrating pro forma compliance with the covenants contained in Article IX both before and after giving effect to such acquisition, and (iii) the aggregate consideration (including cash and non-cash consideration, whether in the form of earned-out payments or other deferred payments) and any assumption of liabilities does not exceed (A) $75,000,000 for any single acquisition or an aggregate of $250,000,000 for all acquisitions from the date hereof through the Revolving Credit Termination Date so long as the Leverage Ratio is less than 3.25 to 1.00 before and immediately after giving effect to such acquisition or (B) $25,000,000 for any single acquisition or an aggregate of $100,000,000 for all acquisitions from the date hereof through the Revolving Credit Termination Date so long as the Leverage Ratio is greater than or equal to 3.25 to 1.00 before or immediately after giving effect to such acquisition, without the prior written consent of the Required Lenders;
(d) investments in securities of trade creditors or customers received pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers in exchange for claims against such trade creditors or customers or in good faith settlement of delinquent obligations of such trade creditors and customers;
(e) Hedging Agreements permitted pursuant to SECTION 11.1Section 10.1;
(fe) purchases of assets in the ordinary course of business;
(gf) investments consisting of extensions of credit in the form nature of loans and advances to employees accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, which, in the aggregate, do not exceed at any time $1,000,000;
(h) intercompany Indebtedness permitted pursuant to SECTION 11.1;
(i) the acquisition of one or more notes, leases or other evidences of indebtedness of franchisees, and Guaranty Obligations with respect to franchisee obligations, in accordance with franchisee leasing or loan programs and investments received in connection with (A) satisfaction or partial satisfaction thereof from financially troubled account debtors to the conversion extent reasonably necessary to notes or other restructuring of franchisee obligations, (B) making loans and advances to franchisees, and (C) acceptance of notes from franchisees in payment for goods and services provided by the Borrower and its Subsidiaries to such franchisees, in an aggregate amount not to exceed $5,000,000 for all such acquisitions, Guaranty Obligations or investments pursuant to this SECTION 11.3(i).
(j) in the case of investments by Foreign Subsidiaries, substantially similar foreign equivalents of those Investments described in SECTION 11.3(b);
(k) investments in the form of notes or other deferred payment obligations received as part of the consideration for Asset Dispositions in accordance with SECTION 11.5(f)prevent loss; and
(lg) other investments not exceeding $50,000,000 in the aggregate in any Person having an aggregate fair market value (measured on Fiscal Year of the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other outstanding Investments made pursuant to this clause (l) since the Effective Date, not to exceed $10,000,000Borrowers.
Appears in 1 contract
Samples: Credit Agreement (Belk 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 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) investments (i) investments existing on the Closing Date in Subsidiaries outstanding existing on the Effective Closing Date, and (ii) ordinary course investments in Restaurant Partnerships consistent with past practice, (iii) investments in Subsidiaries formed or acquired after the Effective Date so long as Holdings and its Subsidiaries comply with the applicable provisions of SECTION 9.11 and such newly formed or acquired Subsidiary becomes a Subsidiary Guarantor, (iv) investments in the form of the other loans, advances and investments described on SCHEDULE Schedule 11.3 existing on the Effective Date and (v) investments in Subsidiary GuarantorsClosing Date;
(b) investments in (i) marketable direct obligations issued or unconditionally guaranteed by the United States or any agency thereof maturing within one year from the date of acquisition thereof, (ii) commercial paper maturing no more than one year from the date of creation thereof cash and currently having a rating of at least P-1 if rated by Mxxxx'x and A-1 if rated by S&P, (iii) certificates of deposit and time deposits maturing no more than one year 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, (iv) securities issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within one year from the date of acquisition thereof and, at the time of acquisition thereof, having one of the two highest ratings obtainable from either S&P or Mxxxx'x; (v) repurchase agreements secured by any one or more of the investments described in clauses (i), (ii) or (iii) of this clause (b), and (vi) shares of any so-called "money market fund" provided that such fund is registered under the Investment Company Act of 1940, has net assets of at least $100,000,000 and has an investment portfolio with an average maturity of 365 days or lessCash Equivalents;
(c) (i) investments by Holdings the Borrowers or any of its their Subsidiaries in the form of Permitted Acquisitions and (ii) any investments, loans and advances by the U.S. Borrower or any Pledged Foreign Subsidiary to any Pledged Foreign Subsidiary, any Wholly-Owned Subsidiary of a Pledged Foreign Subsidiary or any Borrower, the proceeds of which will be used exclusively for Permitted Acquisitions;
(d) investments in securities of trade creditors or customers received Hedging Agreements permitted pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers in exchange for claims against such trade creditors or customers or in good faith settlement of delinquent obligations of such trade creditors and customersSection 11.1;
(e) Hedging Agreements permitted pursuant transfers of money among the Borrowers and the Subsidiaries of either Borrower for the (i) purchase and sale of assets and services in the ordinary course of business consistent with past practices and undertaken in good faith, including without limitation, purchases and sales of inventory among the Borrowers and the Subsidiaries, allocation of revenue and costs related to SECTION 11.1maintenance contracts and sales and marketing costs, and licensing arrangements among the Borrowers and the Subsidiaries and (ii) general operating expenses, reasonable payroll, rental and travel expenses, allocation of revenue and costs among the Borrowers and the Subsidiaries to reasonably comply with income tax and other tax requirements of any applicable jurisdiction, and other operating expenses in the ordinary course of business consistent with past practices and undertaken in good faith of any Subsidiary of either Borrower;
(f) purchases of assets [Subsection Intentionally Omitted];
(g) investments, loans and advances not in the ordinary course of businessbusiness by the U.S. Borrower in any of the Pledged Foreign Subsidiaries and by the Belgian Borrower in Tekelec do Brasil Ltda., and Tekelec France SAS in a collective aggregate amount not to exceed $10,000,000 at any one time outstanding during the term of this Facility;
(gh) investments in the form of investments, loans and advances to employees not in the ordinary course of business, which, business by the U.S. Borrower and by the Belgian Borrower in any Subsidiary (other than the aggregate, do Pledged Foreign Subsidiaries) in a collective aggregate amount not to exceed $3,000,000 at any one time $1,000,000;
(h) intercompany Indebtedness permitted pursuant to SECTION 11.1;outstanding during the term of this Facility; and
(i) the acquisition of one or more notes, leases or other evidences of indebtedness of franchisees, and Guaranty Obligations with respect to franchisee obligations, in accordance with franchisee leasing or loan programs and investments in connection with (Aminority interests in business(es) engaged generally in the conversion to notes or other restructuring of franchisee obligations, (B) making loans and advances to franchisees, and (C) acceptance of notes from franchisees business engaged in payment for goods and services provided by the Borrower Borrowers and its Subsidiaries to such franchiseestheir Subsidiaries, taken as a whole, in an aggregate amount not to exceed $5,000,000 for all such acquisitions, Guaranty Obligations or investments pursuant to this SECTION 11.3(i).
(j) in the case of investments by Foreign Subsidiaries, substantially similar foreign equivalents of those Investments described in SECTION 11.3(b);
(k) investments in the form of notes or other deferred payment obligations received as part of the consideration for Asset Dispositions in accordance with SECTION 11.5(f); and
(l) other investments 10,000,000 in any Person having an aggregate fair market value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other outstanding Investments made pursuant to this clause (l) since the Effective Date, not to exceed $10,000,000Fiscal Year.
Appears in 1 contract
Samples: Credit Agreement (Tekelec)
