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 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) existing on the Closing Date in Subsidiaries, (ii) in Subsidiaries formed or acquired after the Closing Date so long as the Borrower and its Subsidiaries comply with the applicable provisions of Section 8.11 and (iii) existing on the Closing Date in the form of loans, advances and investments 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) 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 McGraw-Hill Companies, Inc. xx Xxxxx'x Investors Service, Inx., (xii) 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 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; and (c) investments by the Borrower or any of its Subsidiaries in the form of acquisitions of all, substantially all or a majority of the stock or assets of the business or a line of business (whether by the acquisition of capital stock, assets or any combination thereof) of any other Person (each, a "Permitted Acquisition"); 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 which is similar, related or complimentary to the line of business of the Borrower and its Subsidiaries as required pursuant to Section 10.12; (ii) the Borrower or such Subsidiary (unless the Person to be acquired complies with Section 8.11), as applicable, shall be the surviving Person and no Change in Control shall have been effected thereby; (iii) the Borrower shall have delivered written notice of such proposed acquisition to the Administrative Agent (for delivery by the Administrative Agent to the Lenders) and the Lenders, which notice shall include the proposed closing date of such proposed acquisition, not less than twenty (20) calendar days prior to such proposed closing date; (iv) the Borrower shall have delivered to the Administrative Agent copies of the Permitted Acquisition Documents; (v) the Borrower shall have certified on or before the closing date of such proposed acquisition, in writing and in a form reasonably acceptable to the Administrative Agent and the Lenders, that such proposed acquisition has been approved by the board of directors or equivalent governing body of the Person to be acquired; (vi) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such proposed acquisition; (vii) the Borrower shall have complied with Section 8.11; (viii) the Borrower shall have delivered to the Administrative Agent and the Lenders an Officer's Compliance Certificate dated as of the closing date of such proposed acquisition demonstrating, in form and substance reasonably satisfactory thereto, pro forma compliance with each covenant contained in Article IX (both before and after giving effect to such proposed acquisition) (it being agreed by the Borrower, the Administrative Agent and the Lenders that such calculations shall assume that all Debt assumed or incurred in conjunction with such proposed acquisition was incurred at the beginning of the applicable calculation period and that all income and expenses associated with such proposed acquisition shall be treated as earned and included in the pro-forma calculations (both on a consolidated and consolidating basis)); (ix) the Borrower shall have at least $10,000,000 in Liquidity both before and after giving effect to such proposed acquisition; and (x) the Person to be acquired is not subject to material pending litigation which could reasonably be expected to have a Material Adverse Effect; (d) intercompany loans and advances in connection with intercompany Debt permitted under Section 10.1(g); (e) Hedging Agreements permitted pursuant to Section 10.1; and (f) purchases of assets in the ordinary course of business.
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 any Restricted Subsidiary), evidence of 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) in Restricted Subsidiaries existing on the Closing Date in SubsidiariesDate, (ii) in Restricted Subsidiaries formed or acquired after the Closing Date so long as the Borrower and its Restricted Subsidiaries comply with the applicable provisions of Section 8.11 9.11 and Section 11.3(d) and (iii) existing on the Closing Date in the form of other loans, advances and investments described on Schedule 10.311.3 existing on the Closing Date;
(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 Ratings Services, a division of The McGraw-Hill Companies, Inc. xx Xxxxx'x or Moody's Investors Service, Inx.Inc., (xiiiii) certificates xxxxxxxxxxxs of deposit maturing no more maturinx xx xxre than one hundred twenty (120) days from the date of creation thereof issued by commercial banks incorporated under the laws of the United States 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) 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 United States of America (such investments described in items (i) through (v) above, "Cash Equivalents"); and
(c) the Acquisition;
(d) investments by the Borrower or any of its Subsidiaries Restricted Subsidiary thereof in the form of acquisitions of all, all or substantially all or a majority of the stock or assets 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 (eachsuch acquisitions being, a "Permitted AcquisitionAcquisitions"); 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 which is similar, related or complimentary to the substantially similar line of business of as the Borrower and its Subsidiaries as required pursuant to Section 10.12;Borrower,
(ii) evidence of approval of the 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 such any Restricted Subsidiary (unless the Person to be acquired complies with Section 8.11), as applicable, shall be the surviving Person and no Change in of Control shall have been effected thereby;
(iii) the Borrower shall have delivered written notice of such proposed acquisition to the Administrative Agent (for delivery by the Administrative Agent to the Lenders) and the Lenders, which notice shall include the proposed closing date of such proposed acquisition, not less than twenty (20) calendar days prior to such proposed closing date;
(iv) the Borrower shall have delivered to the Administrative Agent copies of the Permitted Acquisition Documents;
(v) the Borrower shall have certified on or before the closing date of such proposed acquisition, in writing and in a form reasonably acceptable demonstrated to the Administrative Agent and (A) pro forma compliance (as of the Lenders, that such date of the proposed acquisition has been approved by 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 board of directors or equivalent governing body manner set forth in, Article X, (B) pro forma Asset Coverage Ratio (as of the Person date of the proposed acquisition and after giving effect thereto and any Extensions of Credit made or to be acquired;
made in connection therewith) equal to or exceeding 1.00 to 1.00, (viC) maintenance of at least $25,000,000 of availability under the Revolving Credit Facility both before and after giving effect to the proposed acquisition; and (D) a Maximum Total Leverage Ratio at least .25 below the applicable ratio set forth in Section 10.1 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;
(vii) the Borrower shall have complied with Section 8.11;
(viiivi) the 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 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 Security Documents, said documents to include a favorable opinion of counsel to the Borrower acceptable to the Administrative Agent addressed to the Administrative Agent and the Lenders an Officer's Compliance Certificate dated as with respect to the Borrower, the Person to be acquired and the acquisition in form and substance reasonably acceptable to the Administrative Agent;
(vii) the aggregate amount of Permitted Acquisition Consideration for such acquisition shall not exceed (A) $15,000,000 in the aggregate per Fiscal Year for all such Permitted Acquisitions; provided, however, that any time Maximum Total Leverage Ratio is less than 2.50 to 1.00, the aggregate amount of Permitted Acquisition Consideration for such acquisitions shall not exceed $25,000,000 for any one such Permitted Acquisition;
(viii) the Person to be acquired shall demonstrate positive EBITDA for the most recent twelve (12) month period then ended, both prior to the acquisition and after giving effect thereto, by providing the Administrative Agent and Lenders copies of the closing date of such proposed acquisition demonstratingmost recent financial statements and projections, all in form and substance reasonably satisfactory thereto, pro forma compliance with each covenant contained in Article IX (both before and after giving effect to such proposed acquisition) (it being agreed by the Borrower, the Administrative Agent and the Lenders that such calculations shall assume that all Debt assumed or incurred in conjunction with such proposed acquisition was incurred at the beginning of the applicable calculation period and that all income and expenses associated with such proposed acquisition shall be treated as earned and included in the pro-forma calculations (both on a consolidated and consolidating basis))Lenders;
(ix) the Borrower shall have at least $10,000,000 in Liquidity both before provide such other documents and after giving effect to such proposed acquisition; and
other information as may be reasonably requested by the Administrative Agent or the Required Lenders (xthrough the Administrative Agent) the Person to be acquired is not subject to material pending litigation which could reasonably be expected to have a Material Adverse Effect;
(d) intercompany loans and advances in connection with intercompany Debt permitted under Section 10.1(g)the proposed 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
(fk) purchases of assets in the ordinary course of business.
Appears in 1 contract
Samples: Credit Agreement (Paravant 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, including without limitation, limitation the creation or capitalization of any Subsidiary), evidence of 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) investments (i) investments in or loans or advances to Subsidiaries of ShoLodge that are Borrowers existing on the Closing Date in Subsidiaries, and (ii) in Subsidiaries formed or acquired after the Closing Date so long as the Borrower other loans, advances and its Subsidiaries comply with the applicable provisions of Section 8.11 and (iii) investments existing on the Closing Date in the form of loans, advances and investments described on Schedule 10.3;10.4.
(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 Ratings ServicesRating's Group, a division Division of The McGrawMcGrxx-Hill Companies, Inc. xx Xxxxx'x Investors Xxxx Xxxporation or Moodx'x Xxxestors Service, Inx.Inc., (xiiiii) 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 States 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) 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 thereunderthereunder or (v) such cash equivalent investments similar to those set forth in (i) through (iv) above but not meeting the standards set forth in (i) through (iv) above approved by the applicable Board of Directors or other governing body of ShoLodge or any Subsidiary of ShoLodge, as applicable;
(c) investments, loans, or advances after the Closing Date from (i) any Subsidiary of ShoLodge to any Borrower, (ii) any Borrower to another Borrower, (iii) any Borrower to any Subsidiary of ShoLodge that is not a Borrower in an aggregate amount, with regard to all such non-Borrower Subsidiaries, not to exceed $10,000,000 and (iv) any Subsidiary of ShoLodge that is not a Borrower to another Subsidiary of ShoLodge that is not a Borrower;
(d) investments, loans or advances not otherwise permitted by this Section 10.4, after the Closing Date in or to other Persons in an aggregate amount not to exceed $10,000,000, provided that such Person shall be a franchisee of ShoLodge, a Subsidiary of ShoLodge or any Affiliate thereof, or engaged in the hotel/motel business; and
(ce) investments investments, loans or advances not otherwise permitted by this Section 10.4, after the Borrower Closing Date in or any of its Subsidiaries to Persons in the form of acquisitions of allan aggregate amount not to exceed $1,000,000, substantially all or a majority of the stock or assets of the business or a line of business (whether by the acquisition of capital stock, assets or any combination thereof) of any other Person (each, a "Permitted Acquisition"); 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 which is similar, related or complimentary to the line of business of the Borrower and its Subsidiaries as required pursuant to Section 10.12;
(ii) the Borrower or such Subsidiary (unless the Person to be acquired complies with Section 8.11), as applicable, shall be the surviving Person and no Change in Control shall have been effected thereby;
(iii) the Borrower shall have delivered written notice of such proposed acquisition to the Administrative Agent (for delivery by the Administrative Agent to the Lenders) and the Lenders, which notice shall include the proposed closing date of such proposed acquisition, not less than twenty (20) calendar days prior to such proposed closing date;
(iv) the Borrower shall have delivered to the Administrative Agent copies of the Permitted Acquisition Documents;
(v) the Borrower shall have certified on or before the closing date of such proposed acquisition, in writing and in a form reasonably acceptable to the Administrative Agent and the Lenders, that such proposed acquisition has been approved by the board of directors or equivalent governing body of the Person to be acquired;
(vi) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such proposed acquisition;
(vii) the Borrower shall have complied with Section 8.11;
(viii) the Borrower shall have delivered to the Administrative Agent and the Lenders an Officer's Compliance Certificate dated as of the closing date of such proposed acquisition demonstrating, in form and substance reasonably satisfactory thereto, pro forma compliance with each covenant contained in Article IX (both before and after giving effect to such proposed acquisition) (it being agreed by the Borrower, the Administrative Agent and the Lenders that such calculations shall assume that all Debt assumed or incurred in conjunction with such proposed acquisition was incurred at the beginning of the applicable calculation period and that all income and expenses associated with such proposed acquisition shall be treated as earned and included in the pro-forma calculations (both on a consolidated and consolidating basis));
(ix) the Borrower shall have at least $10,000,000 in Liquidity both before and after giving effect to such proposed acquisition; and
(x) the Person to be acquired is not subject to material pending litigation which could reasonably be expected to have a Material Adverse Effect;
(d) intercompany loans and advances in connection with intercompany Debt permitted under Section 10.1(g);
(e) Hedging Agreements permitted pursuant to Section 10.1; and
(f) purchases of assets in the ordinary course of businessinvestment.
Appears in 1 contract
Samples: Credit Agreement (Sholodge 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 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 Subsidiaries existing on the Closing Date in Subsidiaries, and (ii) in Subsidiaries formed or acquired after the Closing Date so long as the Borrower and its Subsidiaries comply with the applicable provisions of Section 8.11 and (iii) existing on the Closing Date in the form of other loans, advances and investments described on Schedule 10.311.3 existing on the Closing Date;
(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 Ratings Services, a division of The McGraw-Hill Companies, Inc. xx Xxxxx'x or Moody's Investors Service, Inx.Inc., (xiiiii) certificates xxxxxxxxxtes of deposit maturing no maturxxx xx 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 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; and;
(c) investments by the Domestic Borrower or any of its Subsidiaries Subsidiary in the form of acquisitions of all, all or substantially all or a majority of the stock or assets 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 (each, a "Permitted Acquisition"); provided that:, except to the extent that clause (ix)(B) below is applicable, for any acquisition for which the Permitted Acquisition Value is less than $25,000,000, such acquisition must only meet the requirements of clauses (vii) and (viii) below):
(i) the Domestic Borrower shall have delivered to the Agents within ten (10) Business Days after the closing date of such acquisition evidence of the approval 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 form and substance satisfactory to the Agents;
(ii) the Domestic Borrower shall have delivered to the Agents within ten (10) Business Days after the closing date of such acquisition a description of such 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 Agents) and draft copies of the governing documentation (including, without limitation, the purchase agreement) with respect to such acquisition;
(iii) the Domestic Borrower shall have delivered to the Agents on or before the closing date of such acquisition an Officer's Compliance Certificate dated as of the closing date of such acquisition demonstrating, in form and substance reasonably satisfactory thereto, (A) pro forma compliance with each covenant contained in Articles X and XI and (B) that the Person to be acquired shall have positive pro forma cash flow;
(iv) the Domestic Borrower shall have delivered to the Agents within ten (10) Business Days after the closing date of such acquisition all documents required to be delivered pursuant to Section 9.11;
(v) the Person to be acquired shall be a going concern, engaged engage in a business, business or the assets to be acquired shall be used in a business which is similar, related or complimentary to the line of business of the Borrower and its Subsidiaries as required pursuant to described in Section 10.1211.12;
(iivi) the Domestic Borrower or such any Subsidiary (unless the Person to be acquired complies with Section 8.11), as applicable, shall be the surviving Person and no Change in of Control shall have been effected thereby;
(iii) the Borrower shall have delivered written notice of such proposed acquisition to the Administrative Agent (for delivery by the Administrative Agent to the Lenders) and the Lenders, which notice shall include the proposed closing date of such proposed acquisition, not less than twenty (20) calendar days prior to such proposed closing date;
(iv) the Borrower shall have delivered to the Administrative Agent copies of the Permitted Acquisition Documents;
(v) the Borrower shall have certified on or before the closing date of such proposed acquisition, in writing and in a form reasonably acceptable to the Administrative Agent and the Lenders, that such proposed acquisition has been approved by the board of directors or equivalent governing body of the Person to be acquired;
(vivii) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such proposed the acquisition;
(vii) the Borrower shall have complied with Section 8.11;
(viii) the Domestic Borrower shall have delivered to the Administrative Agent and the Lenders an Officer's Compliance Certificate dated as of Agents on or before the closing date of such acquisition evidence that after giving effect to such acquisition, on a pro forma basis, the Leverage Ratio shall be no greater than 2.75 to 1.00; and
(ix) for any acquisition for which (A) the Permitted Acquisition Value of such acquisition exceeds $100,000,000 or (B) the Permitted Acquisition Value of all acquisitions (not to include any acquisition consummated prior to the Closing Date) during the most recent period of twelve (12) consecutive calendar months (including, without limitation, such acquisition) exceeds $125,000,000, (1) the Domestic Borrower shall have obtained the prior written consent of the Administrative Agent and the Required Lenders prior to the consummation of such acquisition and (2) the Domestic Borrower shall deliver to the Agents and the Lenders at least ten (10) Business Days prior to the consummation of such acquisition all documents and other information as may be reasonably requested by the Administrative Agent or the Required Lenders in connection with the proposed acquisition demonstratingacquisition, including, without information, financial information relating to the Person to be acquired, all such documents and information to be in form and substance reasonably satisfactory thereto, pro forma compliance with each covenant contained in Article IX (both before and after giving effect to such proposed acquisition) (it being agreed by the Borrower, the Administrative Agent Agents and the Lenders that such calculations shall assume that all Debt assumed or incurred in conjunction with such proposed acquisition was incurred at the beginning of the applicable calculation period and that all income and expenses associated with such proposed acquisition shall be treated as earned and included in the pro-forma calculations Required Lenders;
(both on a consolidated and consolidating basis)d) Hedging Agreements permitted pursuant to Section 11.1(b);
(ix) the Borrower shall have at least $10,000,000 in Liquidity both before and after giving effect to such proposed acquisition; and
(x) the Person to be acquired is not subject to material pending litigation which could reasonably be expected to have a Material Adverse Effect;
(de) intercompany loans and advances in connection with intercompany Debt permitted under Section 10.1(g11.1(h);
(e) Hedging Agreements permitted pursuant to Section 10.1; and
(f) purchases of assets in the ordinary course of business; and
(g) investments not otherwise permitted by this Section 11.3 made in the ordinary course of business consistent with historical practices not to exceed the greater of $25,000,000 or seven and one-half percent (7.5%) of Net Worth on any date of determination.
Appears in 1 contract
Samples: Credit Agreement (G&k Services 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, including without limitation, limitation the creation or capitalization of any Subsidiary), evidence of 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) investments (i) existing on the Closing Date in Subsidiaries, (ii) in Subsidiaries formed or acquired after the Closing Date so long as the Borrower and its Subsidiaries comply with the applicable provisions of Section 8.11 and (iii) existing on the Closing Date in the form of loans, advances and investments 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) 180 days from the date of acquisition thereof, (ii) commercial paper maturing no more than one hundred twenty (120) 180 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 McGraw-Hill Companies, Inc. xx Xxxxx'x Investors Service, Inx.or Moodx'x, (xii) certificates of deposit maturing no more than one hundred twenty (120) 180 days from the date of creation thereof issued by commercial banks incorporated under the laws of the United States 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) 30 days from the date of creation thereof 66 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;
(cb) investments by the any Borrower or any of its Subsidiaries Subsidiary thereof in the form of acquisitions of all, substantially any Correctional Facility and related assets if each such acquisition meets all or a majority of the stock or assets of the business or a line of business (whether by the acquisition of capital stock, assets or any combination thereof) of any other Person (each, a "Permitted Acquisition"); provided that:
following requirements: (i) the Person to be acquired total aggregate consideration for any single acquisition shall be a going concern, engaged in a business, or not exceed thirty five percent (35%) of the assets to be acquired shall be used in a business which is similar, related or complimentary aggregate net Fixed Asset Book Value immediately prior to the line consummation of business of the Borrower and its Subsidiaries as required pursuant to Section 10.12;
any such acquisition, (ii) the Borrower or such Subsidiary (unless the Person to be acquired complies with Section 8.11), as applicable, shall be the surviving Person and no Change in Control Borrowers shall have been effected thereby;
(iii) the Borrower shall have delivered written notice of such proposed acquisition to the Administrative Agent (for delivery by the Administrative Agent to the Lenders) and the Lenders, which notice shall include the proposed closing date of such proposed acquisition, not less than twenty (20) calendar days demonstrated pro forma compliance with each covenant contained in Article IX hereof prior to such proposed closing date;
(iv) consummating the Borrower shall have delivered to the Administrative Agent copies of the Permitted Acquisition Documents;
(v) the Borrower shall have certified on or before the closing date of such proposed acquisition, in writing acquisition and in a form reasonably acceptable to the Administrative Agent and the Lenders, that such proposed acquisition has been approved by the board of directors or equivalent governing body of the Person to be acquired;
(vi) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such proposed the acquisition;
, (viiiii) the Borrower shall have complied with Section 8.11;
(viii) the Borrower Borrowers shall have delivered to the Administrative Agent and the Lenders an Officer's Compliance Certificate dated as of the closing date of such proposed acquisition demonstrating, in form and substance reasonably satisfactory theretothereto (A) such additional Assignments of Lease, pro forma compliance with each covenant contained such additional Deeds of Trust, such additional UCC-1 financing statements and other documents as are necessary to ensure that the Administrative Agent, on behalf of itself and the Lenders, is granted a first priority security interest in Article IX (both before and after giving effect all of the assets to be acquired pursuant to such proposed acquisitionacquisition (or if such acquisition is permitted by Section 10.12, a second priority security interest in all such property) and (it being agreed B) such other documents, certificate and opinions consistent with Article V as are reasonably requested by the Borrower, the Administrative Agent and the Lenders that such calculations shall assume that all Debt assumed or incurred in conjunction with such proposed acquisition was incurred at the beginning of the applicable calculation period and that all income and expenses associated with such proposed acquisition shall be treated as earned and included in the pro-forma calculations (both on a consolidated and consolidating basis))Required Lenders;
(ixc) loans from CCA REIT to CCA; provided that, (i) such loans are made with Net Cash Proceeds of the Offering, (ii) the Borrower shall have at least aggregate principal amount of such loans do not exceed $10,000,000 40,000,000, (iii) the proceeds of such loans are used solely for the construction and development of Option Facilities and (iv) each such loan is repaid in Liquidity both before and after giving effect full on the earlier of the closing of the sale of such Option Facility to such proposed acquisitionCCA REIT or January 31, 1998; and
(xd) the Person creation of a wholly-owned Subsidiary of CCA REIT for the purpose of providing management services to be acquired is not subject to material pending litigation which could reasonably be expected to have a Material Adverse Effect;
(d) intercompany loans and advances in connection CCA REIT, including without limitation, payroll administration; provided that, CCA REIT complies with intercompany Debt permitted under the applicable provision of Section 10.1(g);
(e) Hedging Agreements permitted pursuant to Section 10.1; and
(f) purchases of assets in the ordinary course of business8.16.
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 any Subsidiary), evidence of 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) existing on the Closing Date in Subsidiaries, (ii) not otherwise permitted by this Section 10.4 in Subsidiaries formed or acquired after the Closing Date (so long as the Borrower and its Subsidiaries comply complies with the applicable provisions of Section 8.11 Sections 8.12 and (iii10.4(c)) and the other existing on the Closing Date in the form of loans, advances and investments not otherwise permitted by this Section 10.4 described on Schedule 10.310.4;
(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) 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 McGraw-Hill Companies, Inc. xx Xxxxx'x or Moody's Investors Service, Inx.Inc., (xiiiii) 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 States 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; and;
(c) investments by the Borrower or any of its Subsidiaries Subsidiary in the form of acquisitions of all, all or substantially all or a majority of the stock or assets of the business or a line of business (whether by the acquisition of capital stock, assets or any combination thereof) of any other Person which are consummated in accordance with all of the following requirements of this Section 10.4(c) (eachany such acquisition, a "Permitted Acquisition"); 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 which is similar, related or complimentary to the substantially similar line of business of as the Borrower and its Subsidiaries as required pursuant to Section 10.12(or a line of business reasonably related thereto);
(ii) the Borrower or such Subsidiary (unless the Person to be acquired complies with Section 8.11), as applicable, shall be the surviving Person and no Change in Control shall have been effected thereby;
(iii) the Borrower shall have delivered written notice of such proposed acquisition to the Administrative Agent (for delivery by the Administrative Agent to the Lenders) and the Lenders, which notice shall include the proposed closing date of such proposed acquisition, not less than twenty (20) calendar days prior to such proposed closing date;
(iv) the Borrower shall have delivered to the Administrative Agent copies of the Permitted Acquisition Documents;
(v) the Borrower shall have certified on or before the closing date of such proposed acquisition, in writing and in a form reasonably acceptable to the Administrative Agent and the Lenders, that such proposed acquisition has been approved by the board of directors or equivalent governing body of the Person to be acquired;
(vi) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such the proposed acquisition;
(viiiii) the proposed acquisition shall be non-hostile (as evidenced by (A) the approval of the acquiree's board of directors or equivalent governing body or (B) a copy of the opinion of counsel delivered by legal counsel to the acquiree in connection with the proposed acquisition which sets forth the approval of the acquiree's board of directors or equivalent governing body); and
(iv) to the extent that the Borrower borrows an amount equal to or greater than $50,000,000 under the Facility in connection with, or in anticipation of, the proposed acquisition, the Borrower shall have complied with Section 8.11;
(viii) the Borrower shall have delivered be required to deliver a certificate of a Responsible Officer to the Administrative Agent no later than ten (10) days prior to the consummation of such acquisition (A) stating that the Borrower has complied with the requirements noted in clauses (i) through (iii) above (and attaching evidence of compliance with the requirements noted in clauses (i) and (iii) above), and (B) attaching calculations which evidence that the Senior Leverage Ratio (as determined pursuant to Section 9.1) shall be less than 2.50 to 1.00 and the Lenders an Officer's Compliance Certificate dated Leverage Ratio (as of the closing date of such proposed acquisition demonstrating, determined pursuant to Section 9.4) shall be less than 3.25 to 1.00 (in form and substance reasonably satisfactory thereto, each case determined on a pro forma compliance with each covenant contained in Article IX (both before and basis after giving effect to such the proposed acquisition) (it being agreed by the Borrower, the Administrative Agent and the Lenders that such calculations shall assume that all Debt assumed or incurred in conjunction together with such proposed acquisition was incurred at the beginning of the applicable calculation period and that all income and expenses associated with such proposed acquisition shall be treated as earned and included in the pro-forma calculations (both on a consolidated and consolidating basis));
(ix) the Borrower shall have at least $10,000,000 in Liquidity both before and after giving effect to such proposed acquisition; and
(x) the Person to be acquired is not subject to material pending litigation which could reasonably be expected to have a Material Adverse Effectsupporting financial statements;
(d) intercompany investments in the form of loans and advances in connection with intercompany Debt permitted under Section 10.1(g);
(e) Hedging Agreements permitted pursuant to Section 10.1; and
(f) purchases of assets employees in the ordinary course of business, which, in the aggregate, do not exceed at any time $3,000,000;
(e) investments (i) by the Borrower of the capital stock of a Subsidiary in another Subsidiary, or (ii) by a Subsidiary of its capital stock or the capital stock of another Subsidiary in another Subsidiary;
(f) investments in the form of loans and advances permitted pursuant to Section 10.1(c);
(g) investments by the Borrower or any of its Subsidiaries in a Wholly-Owned Subsidiary formed in connection with establishing and maintaining the Receivables Purchase Facility;
(h) the Fresh Express Acquisition; and
(i) investments not otherwise permitted by this Section 10.4 in an aggregate amount at any time not to exceed $20,000,000 (provided that no Default or Event of Default has occurred and is continuing at the time any such investment is made or would result from such investment being made).
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 any Restricted Subsidiary), evidence of 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) in Restricted Subsidiaries existing on the Closing Date in SubsidiariesDate, (ii) in Restricted Subsidiaries formed or acquired after the Closing Date so long as the Borrower and its Restricted Subsidiaries comply with the applicable provisions of Section 8.11 9.11 and Section 11.3(d) and (iii) existing on the Closing Date in the form of other loans, advances and investments described on Schedule 10.311.3 existing on the Closing Date;
(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 Ratings Services, a division of The McGraw-Hill Companies, Inc. xx Xxxxx'x or Moody's Investors Service, Inx.Inc., (xiiiix) certificates xxxxxxxxates of deposit maturing no matuxxxx xx 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 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) 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 United States of America (such investments described in items (i) through (v) above, "Cash Equivalents"); and
(c) the Acquisition;
(d) investments by the Borrower or any of its Subsidiaries Restricted Subsidiary thereof in the form of acquisitions of all, all or substantially all or a majority of the stock or assets 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 (eachsuch acquisitions being, a "Permitted AcquisitionAcquisitions"); 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 which is similar, related or complimentary to the substantially similar line of business of as the Borrower and its Subsidiaries as required pursuant to Section 10.12;Borrower,
(ii) evidence of approval of the 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 such any Restricted Subsidiary (unless the Person to be acquired complies with Section 8.11), as applicable, shall be the surviving Person and no Change in of Control shall have been effected thereby;
(iii) the Borrower shall have delivered written notice of such proposed acquisition to the Administrative Agent (for delivery by the Administrative Agent to the Lenders) and the Lenders, which notice shall include the proposed closing date of such proposed acquisition, not less than twenty (20) calendar days prior to such proposed closing date;
(iv) the Borrower shall have delivered to the Administrative Agent copies of the Permitted Acquisition Documents;
(v) the Borrower shall have certified on or before the closing date of such proposed acquisition, in writing and in a form reasonably acceptable demonstrated to the Administrative Agent and (A) pro forma compliance (as of the Lenders, that such date of the proposed acquisition has been approved by 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 board of directors or equivalent governing body manner set forth in, Article X, (B) pro forma Asset Coverage Ratio (as of the Person date of the proposed acquisition and after giving effect thereto and any Extensions of Credit made or to be acquired;
made in connection therewith) equal to or exceeding 1.00 to 1.00, (viC) maintenance of at least $25,000,000 of availability under the Revolving Credit Facility both before and after giving effect to the proposed acquisition; and (D) a Maximum Total Leverage Ratio at least .25 below the applicable ratio set forth in Section 10.1 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;
(vii) the Borrower shall have complied with Section 8.11;
(viiivi) the 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 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 Security Documents, said documents to include a favorable opinion of counsel to the Borrower acceptable to the Administrative Agent addressed to the Administrative Agent and the Lenders an Officer's Compliance Certificate dated as with respect to the Borrower, the Person to be acquired and the acquisition in form and substance reasonably acceptable to the Administrative Agent;
(vii) the aggregate amount of Permitted Acquisition Consideration for such acquisition shall not exceed (A) $15,000,000 in the aggregate per Fiscal Year for all such Permitted Acquisitions; provided, however, that any time Maximum Total Leverage Ratio is less than 2.50 to 1.00, the aggregate amount of Permitted Acquisition Consideration for such acquisitions shall not exceed $25,000,000 for any one such Permitted Acquisition;
(viii) the Person to be acquired shall demonstrate positive EBITDA for the most recent twelve (12) month period then ended, both prior to the acquisition and after giving effect thereto, by providing the Administrative Agent and Lenders copies of the closing date of such proposed acquisition demonstratingmost recent financial statements and projections, all in form and substance reasonably satisfactory thereto, pro forma compliance with each covenant contained in Article IX (both before and after giving effect to such proposed acquisition) (it being agreed by the Borrower, the Administrative Agent and the Lenders that such calculations shall assume that all Debt assumed or incurred in conjunction with such proposed acquisition was incurred at the beginning of the applicable calculation period and that all income and expenses associated with such proposed acquisition shall be treated as earned and included in the pro-forma calculations (both on a consolidated and consolidating basis))Lenders;
(ix) the Borrower shall have at least $10,000,000 in Liquidity both before provide such other documents and after giving effect to such proposed acquisition; and
other information as may be reasonably requested by the Administrative Agent or the Required Lenders (xthrough the Administrative Agent) the Person to be acquired is not subject to material pending litigation which could reasonably be expected to have a Material Adverse Effect;
(d) intercompany loans and advances in connection with intercompany Debt permitted under Section 10.1(g)the proposed 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
(fk) purchases of assets in the ordinary course of business.
Appears in 1 contract
Samples: Credit Agreement (Paravant 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 Debt 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:: 80
(a) investments (i) investments or interests existing on the Closing Date in Subsidiaries, (ii) in Subsidiaries formed or acquired after the Closing Date so long as the Borrower other loans, advances and its Subsidiaries comply with the applicable provisions of Section 8.11 and (iii) investments existing on the Closing Date in the form of loans, advances and investments which are described on Schedule 10.3 and (iii) investments or interests in Subsidiaries formed after the Closing Date and made in accordance with the terms and conditions of this Agreement (including this Section 10.3);
(b) investments in the following (such investments, "Cash Equivalents"):
(i) marketable direct obligations issued or unconditionally guaranteed by the United States of America or any agency thereof maturing within one hundred twenty (1201) days year from the date of acquisition thereof, ,
(ii) commercial paper maturing no more than one two hundred twenty seventy (120270) 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 McGraw-Hill Companies, Inc. xx Xxxxx'x or Moody's Investors Service, InxXxx., ,
(xiiiii) domestic axx xxxxdollar certificates of deposit maturing no more than one hundred twenty eighty (120180) days from the date of creation thereof issued by commercial banks incorporated under the laws of the United States of America, the United Kingdom or Canada, each having combined capital, surplus and undivided profits (less any undivided losses) 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 (A) commercial banks or savings banks or savings and loan associations organized under the laws of the United States or any State thereof 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 thereunderthereunder or (B) commercial banks organized under the laws of the United Kingdom or Canada satisfying the criteria described in clause (iii) above,
(v) money market funds that (A) comply with the criteria set forth in the United States Securities and Exchange Commission Rule 2a-7 under the Investment Company Act of 1940, (B) are rated AAA by Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc. and Aaa by Moody's Investors Sxxxxxx, Xxc. and (C) have portfolio assxxx xx at least $1,000,000,000,
(vi) fully collateralized repurchase agreements with a term of not more than thirty (30) days for securities described in clause (i) above and entered into with a financial institution satisfying the criteria described in clause (iii) above; and
(vii) tax-free variable rate demand notes which are fully supported by letters of credit with a financial institution satisfying the criteria described in clause (iii) above;
(c) investments by the US Borrower or any of its Subsidiaries Subsidiary thereof in the form of acquisitions of all, all or substantially all or a majority of the stock or assets of the business or a line of business (whether by the acquisition of capital stockCapital Stock, assets or any combination thereof) of any other domestic Person if each such acquisition meets all of the following requirements (eachsuch acquisitions being, a "Permitted AcquisitionAcquisitions"); 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 which is similarbusiness, related or complimentary to the line of business of the Borrower and its Subsidiaries as required permitted pursuant to Section 10.12;
(ii) the US Borrower or such any Subsidiary (unless the Person to be including any entity being acquired complies with Section 8.11), as applicable, that becomes a Subsidiary) shall be the surviving Person and no Change in 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;
(iv) the US Borrower shall have delivered written notice of such proposed acquisition to the Administrative Agent (for delivery by the Administrative Agent to the Lenders) and the Lenders, which notice shall include the proposed closing date of such proposed acquisitionacquisition and a description of the acquisition in the form customarily prepared by the US Borrower, not less than twenty five (205) calendar days Business Days prior to such proposed closing date;
(iv) the Borrower shall have delivered to the Administrative Agent copies of the Permitted Acquisition Documents;
(v) the Borrower shall have certified on or before the closing date of such proposed acquisition, in writing and in a form reasonably acceptable to the Administrative Agent and the Lenders, that such proposed acquisition has been is approved by the board of directors (or equivalent governing body 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 be acquiredsuch acquisition;
(vi) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such proposed acquisition;
(vii) the US Borrower shall have complied 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 (provided that, with respect to Section 8.119.1, the US Borrower shall have demonstrated to the Administrative Agent that the Leverage Ratio is at least 0.25 below the applicable ratio set forth therein);
(viii) the US Borrower shall have delivered to the Administrative Agent and the Lenders an Officer's Compliance Certificate dated as of the closing date of such proposed acquisition demonstrating, in form and substance documents reasonably satisfactory thereto, pro forma compliance with each covenant contained in Article IX (both before and after giving effect to such proposed acquisition) (it being agreed requested by the Borrower, Administrative Agent or the Required Lenders (through the Administrative Agent) pursuant to Section 8.10 to be delivered at the time required pursuant to Section 8.10; and
(ix) the US Borrower shall have obtained the prior written consent of the Administrative Agent and the Required Lenders that such calculations shall assume that all Debt assumed or incurred in conjunction with prior to the consummation of such proposed acquisition was incurred at if the beginning aggregate amount of the applicable calculation period and that all income and expenses associated Permitted Acquisition Consideration payable in cash with respect to such proposed acquisition shall be treated as earned and included or series of related acquisitions, together with the aggregate amount of Permitted Acquisition Consideration paid in cash with respect to all acquisitions or series of related acquisitions consummated since the pro-forma calculations (both on a consolidated and consolidating basis));
(ix) the Borrower shall have at least Closing Date, exceeds $10,000,000 in Liquidity both before and after giving effect to such proposed acquisition; and
(x) the Person to be acquired is not subject to material pending litigation which could reasonably be expected to have a Material Adverse Effect;300,000,000.
(d) intercompany loans and advances in connection with intercompany Debt permitted under Section 10.1(g);
(e) Hedging Agreements permitted pursuant to Section 10.1; and;
(fe) purchases of assets in the ordinary course of business;
(f) investments in the form of loans and advances to employees in the ordinary course of business (including for travel, entertainment and relocation expenses), which, in the aggregate, do not exceed at any time $10,000,000.
(g) intercompany loans and advances permitted pursuant to Section 10.1(i);
(h) equity investments (i) by the US Borrower in any Guarantor, (ii) by any Subsidiary in the US Borrower, (iii) by any Subsidiary in any Guarantor or (iv) by any Subsidiary that is not a Guarantor in any other Subsidiary that is not a Guarantor;
(i) equity investments in, and loans and advances to, Subsidiaries that are not Guarantors in the ordinary course of business in an aggregate amount not to exceed $150,000,000 at any time;
(j) investments by Finance Subsidiaries in any Subsidiary SPC used to effect a Permitted Asset Securitization;
(k) intercompany investments, loans and advances arising in connection with pooled cash management activities of the US Borrower and its Subsidiaries;
(l) investments accepted by the US Borrower or any Subsidiary in the ordinary course of business in satisfaction of unpaid obligations owed to it, and other de minimis investments acquired in the ordinary course of business; and
(m) other additional investments not otherwise permitted pursuant to this Section 10.3 not exceeding $10,000,000 in the aggregate at any time.
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 any Subsidiary), evidence of 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) not otherwise permitted by this Section 10.4 in Subsidiaries existing on the Closing Date in Subsidiaries, (ii) in Subsidiaries formed or acquired after and the Closing Date so long as the Borrower and its Subsidiaries comply with the applicable provisions of Section 8.11 and (iii) other existing on the Closing Date in the form of loans, advances and investments not otherwise permitted by this Section 10.4 described on Schedule 10.310.4(a);
(b) investments permitted under the Investment Policy in effect as of the Closing Date, a copy of which is attached hereto as Schedule 10.4(b); provided, that any exceptions or modifications to the Investment Policy after the Closing Date approved in advance by the Required Lenders shall also be permitted hereby;
(c) 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 Ratings Services, a division of The McGrawMcGrxx-Hill CompaniesXxxx Xxxpanies, Inc. xx Xxxxx'x Investors or Moodx'x Xxxestors Service, Inx.Inc., (xiiiii) 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 States 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; and
(c) investments by the Borrower or any of its Subsidiaries in the form of acquisitions of all, substantially all or a majority of the stock or assets of the business or a line of business (whether by the acquisition of capital stock, assets or any combination thereof) of any other Person (each, a "Permitted Acquisition"); 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 which is similar, related or complimentary to the line of business of the Borrower and its Subsidiaries as required pursuant to Section 10.12;
(ii) the Borrower or such Subsidiary (unless the Person to be acquired complies with Section 8.11), as applicable, shall be the surviving Person and no Change in Control shall have been effected thereby;
(iii) the Borrower shall have delivered written notice of such proposed acquisition to the Administrative Agent (for delivery by the Administrative Agent to the Lenders) and the Lenders, which notice shall include the proposed closing date of such proposed acquisition, not less than twenty (20) calendar days prior to such proposed closing date;
(iv) the Borrower shall have delivered to the Administrative Agent copies of the Permitted Acquisition Documents;
(v) the Borrower shall have certified on or before the closing date of such proposed acquisition, in writing and in a form reasonably acceptable to the Administrative Agent and the Lenders, that such proposed acquisition has been approved by the board of directors or equivalent governing body of the Person to be acquired;
(vi) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such proposed acquisition;
(vii) the Borrower shall have complied with Section 8.11;
(viii) the Borrower shall have delivered to the Administrative Agent and the Lenders an Officer's Compliance Certificate dated as of the closing date of such proposed acquisition demonstrating, in form and substance reasonably satisfactory thereto, pro forma compliance with each covenant contained in Article IX (both before and after giving effect to such proposed acquisition) (it being agreed by the Borrower, the Administrative Agent and the Lenders that such calculations shall assume that all Debt assumed or incurred in conjunction with such proposed acquisition was incurred at the beginning of the applicable calculation period and that all income and expenses associated with such proposed acquisition shall be treated as earned and included in the pro-forma calculations (both on a consolidated and consolidating basis));
(ix) the Borrower shall have at least $10,000,000 in Liquidity both before and after giving effect to such proposed acquisition; and
(x) the Person to be acquired is not subject to material pending litigation which could reasonably be expected to have a Material Adverse Effect;
(d) intercompany loans and advances in connection with intercompany Debt permitted under Section 10.1(g);
(e) Hedging Agreements permitted pursuant to Section 10.1; and
(f) purchases of assets in the ordinary course of business.of
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 51 57 any partnership or joint venture (including, including without limitation, limitation the creation or capitalization of any Subsidiary), evidence of Debt or other obligation or security, substantially all or a material 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) existing on the Closing Date in Subsidiaries, (ii) not otherwise permitted by this Section 10.4 in Subsidiaries formed (including without limitation, the creation or acquired after capitalization of any Subsidiary) and the Closing Date so long as the Borrower and its Subsidiaries comply with the applicable provisions of Section 8.11 and (iii) other existing on the Closing Date in the form of loans, advances and investments not otherwise permitted by this Section 10.4 described on Schedule 10.310.4;
(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 Ratings Services, a division of The McGrawMcGrxx-Hill CompaniesXxxx Xxxpanies, Inc. xx Xxxxx'x Investors or Moodx'x Xxxestors Service, Inx.Inc., (xiiiii) 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 States 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) 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;
(c) investments by the Borrower or any of its Subsidiaries Subsidiary thereof in the form of acquisitions of all, all or substantially all or a majority of the stock or assets of the business or a line of business of any other Person (whether by the acquisition of capital stockstock or other equity ownership interests, assets or any combination thereof) which are consummated in accordance with the following requirements of this Section 10.4(c) (any other Person (eachsuch acquisition, a "Permitted Acquisition"); provided that:):
(i) the acquired Person to be acquired shall be a going concern, engaged and substantially all of the acquired assets shall be utilized in a business, or the assets to be acquired shall be used in a substantially similar business which is similar, related or complimentary to the line of business of as the Borrower and its Subsidiaries as required pursuant to Section 10.12;
or any Subsidiary thereof, (ii) with regard to any proposed acquisition or series of related acquisitions having total aggregate consideration in excess of $5,000,000, a description of the relevant proposed acquisition or series of related acquisitions in reasonable detail and the corresponding documentation shall be furnished by the Borrower or such Subsidiary to the Lenders at least fifteen (unless 15) Business Days prior to the Person closing date thereof (to be acquired complies with Section 8.11followed by any changed pages and fully executed copies promptly after the creation thereof), as applicable, shall be the surviving Person and no Change in Control shall have been effected thereby;
(iii) the Borrower shall have delivered written notice of such proposed acquisition after giving effect to the Administrative Agent (for delivery by the Administrative Agent to the Lenders) and the Lenders, which notice shall include the proposed closing date of such proposed acquisition, not less than twenty (20) calendar days prior to such proposed closing date;
(iv) the Borrower shall have delivered to the Administrative Agent copies of the Permitted Acquisition Documents;
(v) the Borrower shall have certified on or before the closing date of such proposed acquisition, in writing and in a form reasonably acceptable to the Administrative Agent and the Lenders, that such proposed acquisition has been approved by the board of directors or equivalent governing body of the Person to be acquired;
(vi) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such (which, for any proposed acquisition;
(vii) acquisition or series of related acquisitions having total aggregate consideration in excess of $5,000,000, shall be evidenced by a certificate of the Borrower shall have complied with Section 8.11;
(viii) delivered on the Borrower shall have delivered closing date thereof to the Administrative Agent and the Required Lenders an Officer's Compliance Certificate dated as of the closing date of such proposed acquisition demonstrating, in form and substance reasonably satisfactory thereto, to the Administrative Agent and demonstrating pro forma compliance with each covenant contained the financial covenants set forth in Article IX (both before and after giving effect to such proposed acquisition) (it being agreed by the Borrower, the Administrative Agent and the Lenders that such calculations shall assume that all Debt assumed other terms of the Loan Documents), 52 58 and (iv) the aggregate cash or incurred in conjunction with any other consideration for any such proposed acquisition was incurred at and all prior Permitted Acquisitions consummated during the beginning of the applicable calculation period and that all income and expenses associated with such proposed acquisition shall be treated as earned and included in the proterm hereof does not exceed Twenty-forma calculations Five Million Dollars (both on a consolidated and consolidating basis$25,000,000));
(ix) the Borrower shall have at least $10,000,000 in Liquidity both before and after giving effect to such proposed acquisition; and
(x) the Person to be acquired is not subject to material pending litigation which could reasonably be expected to have a Material Adverse Effect;
(d) intercompany loans investments in the form of deposits for utilities, security deposits, deposits for leases, and advances similar prepaid expenses incurred in connection with intercompany Debt permitted under Section 10.1(g)the ordinary course of business;
(e) Hedging Agreements permitted pursuant loans or advances to Section 10.1employees of the Borrower or any Subsidiary thereof made in the ordinary course of business that do not in the aggregate exceed $1,000,000 at any time outstanding; and
(f) purchases investments in the form of assets trade accounts created in the ordinary course of business.
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 any Subsidiary), evidence of 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) existing on the Closing Date in Subsidiaries, (ii) not otherwise permitted by this Section 10.4 in Subsidiaries formed or acquired after the Closing Date Performance Insurance (so long as the Borrower and its Subsidiaries comply complies with the applicable provisions of Section 8.11 Sections 10.4(c)) and (iii) the other existing on the Closing Date in the form of loans, advances and investments not otherwise permitted by this Section 10.4 described on Schedule 10.310.4;
(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) 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 McGrawXxXxxx-Hill Xxxx Companies, Inc. xx or Xxxxx'x Investors Service, Inx.Inc., (xiiiii) 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 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 10,000,000 for any one such certificate of deposit and $10,000,000 50,000,000 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; and, or (v) money market mutual funds organized under the laws of the United States or any State thereof which have daily pricing and daily redemption features and invest at least ninety percent (90%) of their assets in the investments described in clauses (i) through (iv) of this Section 10.4(b);
(c) investments by the Borrower or any of its Subsidiaries Subsidiary in the form of acquisitions of all, all or substantially all or a majority of the stock or assets 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 which are consummated in accordance with all of the following requirements of this Section 10.4(c) (eachany such acquisition, a "Permitted Acquisition"); 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 which is similar, related or complimentary to the substantially similar line of business of as the Borrower and its Subsidiaries as required pursuant to Section 10.12(or a line of business reasonably related thereto);
(ii) the Borrower or such Subsidiary (unless the Person to be acquired complies with Section 8.11), as applicable, shall be the surviving Person and no Change in Control shall have been effected thereby;
(iii) the Borrower shall have delivered written notice of such proposed acquisition to the Administrative Agent (for delivery by the Administrative Agent to the Lenders) and the Lenders, which notice shall include the proposed closing date of such proposed acquisition, not less than twenty (20) calendar days prior to such proposed closing date;
(iv) the Borrower shall have delivered to the Administrative Agent copies of the Permitted Acquisition Documents;
(v) the Borrower shall have certified on or before the closing date of such proposed acquisition, in writing and in a form reasonably acceptable to the Administrative Agent and the Lenders, that such proposed acquisition has been approved by the board of directors or equivalent governing body of the Person to be acquired;
(vi) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such proposed acquisition;
(vii) the Borrower shall have complied with Section 8.11;
(viii) the Borrower shall have delivered to the Administrative Agent and the Lenders an Officer's Compliance Certificate dated as of the closing date of such proposed acquisition demonstrating, in form and substance reasonably satisfactory thereto, pro forma compliance with each covenant contained in Article IX (both before and after giving effect to such proposed acquisition) (it being agreed by the Borrower, the Administrative Agent and the Lenders that such calculations shall assume that all Debt assumed or incurred in conjunction with such proposed acquisition was incurred at the beginning of the applicable calculation period and that all income and expenses associated with such proposed acquisition shall be treated as earned and included in the pro-forma calculations (both on a consolidated and consolidating basis));
(ix) the Borrower shall have at least $10,000,000 in Liquidity both before and after giving effect to such proposed acquisition; and
(xiii) the Person proposed acquisition shall be non-hostile (as evidenced by (A) the approval of the acquiree's board of directors or equivalent governing body or (B) a copy of the opinion of counsel delivered by legal counsel to be acquired is not subject to material pending litigation the acquiree in connection with the proposed acquisition which could reasonably be expected to have a Material Adverse Effectsets forth the approval of the acquiree's board of directors or equivalent governing body);
(d) intercompany investments in the form of loans and advances in connection with intercompany Debt permitted under Section 10.1(g);
(e) Hedging Agreements permitted pursuant to Section 10.1; and
(f) purchases of assets employees in the ordinary course of business., which, in the aggregate, do not exceed at any time $3,000,000;
(e) investments (i) by the Borrower of the Capital Stock of a Subsidiary or Performance Insurance in another Subsidiary or Performance Insurance, or (ii) by a Subsidiary or Performance Insurance of its Capital Stock or the Capital Stock of another Subsidiary in another Subsidiary;
(f) investments in the form of loans and advances permitted pursuant to Section 10.1(c);
(g) investments by the Borrower or any of its Subsidiaries in any Wholly-Owned Subsidiary or Performance Insurance; and
(h) investments not otherwise permitted by this Section 10.4; provided that at the time each such investment is made and after giving effect to each such investment, (i) no Default or Event of Default has occurred and is continuing and (ii) the Borrower is in pro forma compliance with each of the covenants set forth in Article IX. Notwithstanding the foregoing, the proceeds of the sale by the Borrower on June 28, 2005 of all of the Capital Stock of certain of its Wholly-Owned Subsidiaries which comprised the Borrower's fresh cut produce segment, including Fresh International Corp., Fresh Advantage, Inc., Redi-Cut Foods, Inc. and K.C. Salad Holdings, Inc. in an aggregate amount up to $700,000,000 (the "Subsidiary Disposition Proceeds") may, in addition to the foregoing investments, be invested through December 28, 2005 in (a) money market mutual funds organized under the laws of the United States or any state thereof which have daily pricing and daily redemption features and invest at least twenty-five percent (25%) of their assets in the investments described in clauses (i) through (iv) of Section 10.4(b) above and/or (b) tax-exempt municipal bonds and securities, including, but not limited to dutch auction securities, demand and put securities, commercial paper, notes and other debt obligations, in each case having a rating of "AAA" (or the equivalent) or better from either Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. or Xxxxx'x Investors Service, Inc.
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 any Restricted Subsidiary), evidence of Debt (other than Guaranty Obligations permitted pursuant to Section 11.1) 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) existing on in Subsidiaries made prior to the Closing Date in SubsidiariesDate, (ii) in Restricted Subsidiaries formed or acquired after the Closing Date so long as the Borrower and its Subsidiaries comply with the applicable provisions of Section 8.11 9.11 and (iii) existing on the Closing Date in the form of other loans, advances and investments made prior to the Closing Date described on Schedule 10.311.3;
(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 ninety (12090) days from the date of acquisition thereof, (ii) commercial paper (A) maturing no more than one hundred twenty ninety (12090) days from the date of creation thereof and currently having the highest a rating obtainable of at least A-2 from either Standard & Poor's Ratings Services, a division of The McGrawXxXxxx-Hill Xxxx Companies, Inc. xx or P-2 from Xxxxx'x Investors Service, Inx.Inc. or (B) maturing no more than one (1) year from the date of creation thereof and currently having a rating of at least A-1 from Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. or P-1 from Xxxxx'x Investors Service, Inc., (xiiiii) 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 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; and;
(c) investments by the Borrower or any of its Restricted Subsidiaries in the form of acquisitions of all, all or substantially all or a majority of the stock or assets 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 such acquisition has been previously approved in writing by the Required Lenders;
(d) Hedging Agreements permitted pursuant to Section 11.1 and any commodity swap or other agreement or arrangement related to commodity prices;
(e) purchases of assets in the ordinary course of business;
(f) investments in franchisees of the Borrower not to exceed $50,000,000 in the aggregate at any time;
(g) loans and advances to officers and employees of the Borrower and its Subsidiaries in the ordinary course of the business of the Borrower and its Subsidiaries as presently conducted in an aggregate principal amount not to exceed $2,000,000 at any time outstanding;
(h) other non-speculative investments of the Borrower and its Restricted Subsidiaries not otherwise permitted pursuant to this Section 11.3 not to exceed $25,000,000 in the aggregate at any time;
(i) investments pursuant to the Permitted Franchisee Financing Program in an amount not to exceed $5,000,000 at any time outstanding; and
(j) investments by the Borrower or any of its Restricted 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 Restricted Subsidiaries promptly comply with Section 9.11 hereof (each, a "Permitted Acquisition"); 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 which is similarbusiness, related similar or complimentary to the line of business of the Borrower and its Subsidiaries as required pursuant 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 Section 10.12be acquired;
(ii) the Borrower or such Subsidiary (unless the Person to be acquired complies with Section 8.11)its Subsidiary, as applicable, shall be the surviving Person and no Change in Control shall have been effected thereby;
(iii) the Borrower shall have delivered written notice of such proposed acquisition to or its Subsidiary, as applicable, is in compliance with the Administrative Agent (for delivery by the Administrative Agent to the Lenders) and the Lenders, which notice shall include the proposed closing date of such proposed acquisition, not less than twenty (20) calendar days prior covenants contained in Article X after giving effect to such proposed closing dateacquisition;
(iv) the Borrower shall have delivered to the Administrative Agent copies of the Permitted Acquisition Documents;
(v) the Borrower shall have certified on or before the closing date of such proposed acquisition, in writing and in a form reasonably acceptable to the Administrative Agent and the Lenders, that such proposed acquisition has been approved by the board of directors or equivalent governing body of the Person to be acquired;
(vi) 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 Article X;
(vi) the Borrower shall deliver written notice of such proposed acquisition to the Administrative Agent, which notice shall include the proposed closing date of the acquisition, not less than ten (10) Business Days prior to such proposed closing date;
(vii) to the extent requested by the Administrative Agent, the Borrower shall have complied with Section 8.11;deliver to the Administrative Agent copies of (A) the Permitted Acquisition Documents and (B) the Permitted Acquisition Diligence Information within a reasonable period of time before or after the proposed closing date of such acquisition; and
(viii) the Borrower shall have delivered obtain the prior written consent of the Required Lenders prior to the Administrative Agent and consummation of any acquisition, or series of related acquisitions, if the Lenders an Officer's Compliance Certificate dated as of the closing date of such proposed acquisition demonstrating, aggregate total consideration to be paid in form and substance reasonably satisfactory thereto, pro forma compliance with each covenant contained in Article IX (both before and after giving effect to such proposed acquisition) (it being agreed by the Borrower, the Administrative Agent and the Lenders that such calculations shall assume that all Debt assumed or incurred in conjunction connection with such proposed acquisition was incurred at or series of related acquisitions would exceed $50,000,000 in the beginning aggregate during the term of the applicable calculation period and that all income and expenses associated with such proposed acquisition shall be treated as earned and included in the pro-forma calculations (both on a consolidated and consolidating basis));
(ix) the Borrower shall have at least $10,000,000 in Liquidity both before Credit Facility from and after giving effect to such proposed acquisition; and
(x) the Person to be acquired is not subject to material pending litigation which could reasonably be expected to have a Material Adverse Effect;
(d) intercompany loans and advances in connection with intercompany Debt permitted under Section 10.1(g);
(e) Hedging Agreements permitted pursuant to Section 10.1; and
(f) purchases of assets in the ordinary course of business.January 1, 2003. P SECTION 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 stock, interests in any partnership or joint venture (including, including without limitation, limitation the creation or capitalization of any Subsidiary), evidence of 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) existing on the Closing Date in Subsidiaries, (ii) not otherwise permitted by this Section 10.4 in Subsidiaries formed or acquired after the Closing Date (so long as the Borrower and its Subsidiaries comply complies with the applicable provisions of Section 8.11 Sections 8.12 and (iii10.4(c)) and the other existing on the Closing Date in the form of loans, advances and investments not otherwise permitted by this Section 10.4 described on Schedule 10.310.4;
(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) 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 McGraw-Hill CompaniesXxxx Xxxxxxies, Inc. xx Xxxxx'x Investors or Moody's Xxxxxxors Service, Inx.Inc., (xiiiii) 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 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 10,000,000 for any one such certificate of deposit and $10,000,000 50,000,000 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; and, or (v) money market mutual funds organized under the laws of the United States or any State thereof which have daily pricing and daily redemption features and invest at least ninety percent (90%) of their assets in the investments described in clauses (i) through (iv) of this Section 10.4 (b);
(c) investments by the Borrower or any of its Subsidiaries Subsidiary in the form of acquisitions of all, all or substantially all or a majority of the stock or assets of the business or a line of business (whether by the acquisition of capital stock, assets or any combination thereof) of any other Person which are consummated in accordance with all of the following requirements of this Section 10.4(c) (eachany such acquisition, a "Permitted Acquisition"); 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 which is similar, related or complimentary to the substantially similar line of business of as the Borrower and its Subsidiaries as required pursuant to Section 10.12(or a line of business reasonably related thereto);
(ii) the Borrower or such Subsidiary (unless the Person to be acquired complies with Section 8.11), as applicable, shall be the surviving Person and no Change in Control shall have been effected thereby;
(iii) the Borrower shall have delivered written notice of such proposed acquisition to the Administrative Agent (for delivery by the Administrative Agent to the Lenders) and the Lenders, which notice shall include the proposed closing date of such proposed acquisition, not less than twenty (20) calendar days prior to such proposed closing date;
(iv) the Borrower shall have delivered to the Administrative Agent copies of the Permitted Acquisition Documents;
(v) the Borrower shall have certified on or before the closing date of such proposed acquisition, in writing and in a form reasonably acceptable to the Administrative Agent and the Lenders, that such proposed acquisition has been approved by the board of directors or equivalent governing body of the Person to be acquired;
(vi) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such the proposed acquisition;
(viiiii) the proposed acquisition shall be non-hostile (as evidenced by (A) the approval of the acquiree's board of directors or equivalent governing body or (B) a copy of the opinion of counsel delivered by legal counsel to the acquiree in connection with the proposed acquisition which sets forth the approval of the acquiree's board of directors or equivalent governing body); and
(iv) to the extent that (1) the Borrower shall have complied with Section 8.11;
(viii) borrows an amount equal to or greater than $25,000,000 under the Borrower shall have delivered to Facility in connection with, or in anticipation of, the Administrative Agent and the Lenders an Officer's Compliance Certificate dated as of the closing date of such proposed acquisition demonstrating, in form and substance reasonably satisfactory thereto, pro forma compliance with each covenant contained in Article IX (both before and 2) after giving effect to such proposed acquisition) (it being agreed by borrowing, less than $100,000,000 in remaining availability exists under the BorrowerFacility, the Borrower shall be required to deliver a certificate of a Responsible Officer to the Administrative Agent no later than ten (10) days prior to the consummation of such acquisition (A) stating that the Borrower has complied with the requirements noted in clauses (i) through (iii) above (and attaching evidence of compliance with the Lenders requirements noted in clauses (i) and (iii) above), and (B) attaching calculations which evidence that such calculations shall assume that all Debt assumed or incurred the Borrower is in conjunction compliance with such proposed acquisition was incurred at the beginning covenants set forth in Article IX of the applicable calculation period and that all income and expenses associated with such proposed acquisition shall be treated as earned and included this Agreement, in the pro-forma calculations (both each case determined on a consolidated and consolidating basis));
(ix) the Borrower shall have at least $10,000,000 in Liquidity both before and pro forma basis after giving effect to such the proposed acquisition; and
(x) the Person to be acquired is not subject to material pending litigation which could reasonably be expected to have a Material Adverse Effect, together with supporting financial statements;
(d) intercompany investments in the form of loans and advances in connection with intercompany Debt permitted under Section 10.1(g);
(e) Hedging Agreements permitted pursuant to Section 10.1; and
(f) purchases of assets employees in the ordinary course of business, which, in the aggregate, do not exceed at any time $3,000,000;
(e) investments (i) by the Borrower of the capital stock of a Subsidiary in another Subsidiary, or (ii) by a Subsidiary of its capital stock or the capital stock of another Subsidiary in another Subsidiary;
(f) investments in the form of loans and advances permitted pursuant to Section 10.1(c);
(g) investments by the Borrower or any of its Subsidiaries in any Wholly-Owned Subsidiary;
(h) investments not otherwise permitted by this Section 10.4 in an aggregate amount at any time not to exceed $25,000,000 (provided that no Default or Event of Default has occurred and is continuing at the time any such investment is made or would result from such investment being made).
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 any Restricted Subsidiary), evidence of 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:
(ai) investments (i) in or loans, advances or extensions of credit to Subsidiaries existing on the Closing Date in SubsidiariesDate, (ii) investments in or loans, advances or extensions of credit to Restricted Subsidiaries formed or acquired after the Closing Date so long as the Borrower and its Subsidiaries comply with the applicable provisions of Section 8.11 9.11 and (iii) existing on the Closing Date in the form of other loans, advances and investments described on Schedule 10.311.3 existing on the Closing Date;
(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 an A1-P1 rating obtainable from either Standard & Poor's Ratings Services, a division of The McGraw-Hill Companies, Inc. xx Xxxxx'x or Moody's Investors Service, Inx.Inc., (xiiiii) certificates xxxxxxxxxxxs of deposit maturing no more maturinx xx xxre than one hundred twenty (120) days from the date of creation thereof issued by commercial banks incorporated under the laws of the United States of AmericaStates, 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; and, or (v) municipal securities rated investment grade or better by either Standard & Poor's Rating Services, a division of the McGraw-Hill Companies, or Moody's Investors Service, Inc.;
(cx) investments xxxestments by the Borrower Xxxxxxer or any of its Subsidiaries in the form of acquisitions of all, all or substantially all or a majority of the stock or assets of the business or a line of business (whether by the acquisition of capital stock, assets or any combination thereof) of any other Person (each, a "Permitted Acquisition"); 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 which is similar, related or complimentary to the line of business of the Borrower and its Subsidiaries as required pursuant to Section 10.12;
(ii) the Borrower or if such Subsidiary (unless the Person to be acquired complies with Section 8.11), as applicable, shall be the surviving Person and no Change in Control shall have been effected thereby;
(iii) the Borrower shall have delivered written notice of such proposed acquisition to the Administrative Agent (for delivery by the Administrative Agent to the Lenders) and the Lenders, which notice shall include the proposed closing date of such proposed acquisition, not less than twenty (20) calendar days prior to such proposed closing date;
(iv) the Borrower shall have delivered to the Administrative Agent copies of the Permitted Acquisition Documents;
(v) the Borrower shall have certified on or before the closing date of such proposed acquisition, in writing and in a form reasonably acceptable to the Administrative Agent and the Lenders, that such proposed acquisition has been previously approved in writing by the board of directors or equivalent governing body of the Person to be acquired;
(vi) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such proposed acquisition;
(vii) the Borrower shall have complied with Section 8.11;
(viii) the Borrower shall have delivered to the Administrative Agent and the Lenders an Officer's Compliance Certificate dated as of the closing date of such proposed acquisition demonstrating, in form and substance reasonably satisfactory thereto, pro forma compliance with each covenant contained in Article IX (both before and after giving effect to such proposed acquisition) (it being agreed by the Borrower, the Administrative Agent and the Lenders that such calculations shall assume that all Debt assumed or incurred in conjunction with such proposed acquisition was incurred at the beginning of the applicable calculation period and that all income and expenses associated with such proposed acquisition shall be treated as earned and included in the pro-forma calculations (both on a consolidated and consolidating basis));
(ix) the Borrower shall have at least $10,000,000 in Liquidity both before and after giving effect to such proposed acquisition; and
(x) the Person to be acquired is not subject to material pending litigation which could reasonably be expected to have a Material Adverse EffectRequired Lenders;
(d) intercompany loans and advances in connection with intercompany Debt permitted under Section 10.1(g);
(e) Hedging Agreements permitted pursuant to Section 10.1; and11.1;
(fe) purchases of assets in the ordinary course of business;
(f) to the extent they constitute an investment, contributions to and payments of benefits under any Employee Benefits Plan in existence as of the Closing Date as required by the benefit commitment in such Employee Benefits Plan as of the Closing Date;
(g) investments, loans, advances or extensions of credit in addition to those permitted elsewhere in this Section 11.3 in an aggregate amount not to exceed $2,000,000 in the aggregate at any time outstanding; and
(h) investments in or loans, advances or extensions of credit to Unrestricted Subsidiaries and/or joint ventures in an amount not to exceed $10,000,000 during the term of this Agreement.
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 any Subsidiary), evidence of 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 for the following:
(a) investments (i) existing on the Closing Date in Subsidiaries, (ii) in Subsidiaries formed or acquired after the Closing Date so long as the Borrower and its Subsidiaries comply with the applicable provisions of Section 8.11 and (iii) existing on the Closing Date in the form of loans, advances and investments 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, (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 Ratings Services, a division of The McGraw-Hill Companies, Inc. xx Xxxxx'x Investors Service, Inx.S&P or Xxxxx'x, (xiiiii) 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 States 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) 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; andand repurchase agreements issued by any Lender having a maturity of less than one year;
(b) loans to officers of GTA not to exceed an aggregate of $1,000,000 at any one time outstanding;
(c) investments by in golf course properties and related improvements;
(d) investments in unconsolidated partnerships and joint ventures; the Borrower or any aggregate amount of its Subsidiaries such investment in such partnerships and joint ventures (including investments existing on the form of acquisitions of all, substantially all or a majority of the stock or assets of the business or a line of business Closing Date) not to exceed five percent (whether by the acquisition of capital stock, assets or any combination thereof5%) of Total Assets at any time;
(e) loans to other Person (each, a "Permitted Acquisition")Persons; provided that:
(i) the Person proceeds of such loans will be used to be acquired shall be a going concern, engaged in a businessconstruct improvements that are, or would become (as set forth below), part of a Stabilized Golf Course owned by the assets to be acquired shall be used in a business which is similar, related or complimentary to the line of business of the Borrower and its Subsidiaries as required pursuant to Section 10.12Borrower;
(ii) the Borrower or aggregate outstanding amount of such Subsidiary (unless loans plus the Person amounts utilized for the construction of improvements to golf course properties to the extent permitted under Section 10.11 plus loans outstanding under Section 10.4(b) plus any amount outstanding under the Borrower's commitment to lend $9,000,000 to Golf Hosts, Inc. to be acquired complies with Section 8.11), as applicable, used to make various capital improvements to the Innisbrook golf course property shall be the surviving Person and no Change in Control shall have been effected therebynot exceed 10% of Total Assets at any time;
(iii) the Borrower Person receiving such Loan (the "Recipient") shall have delivered written notice executed a promissory note in favor of such proposed acquisition the Borrower, in form and substance satisfactory to the Administrative Agent (for delivery by the Administrative Agent to the Lenders) and the Lenders, which notice shall include the proposed closing date of such proposed acquisition, not less than twenty (20) calendar days prior to such proposed closing dateAgent;
(iv) the Borrower Recipient shall have delivered granted to the Administrative Agent copies of Borrower and shall have recorded in the Permitted Acquisition Documentsappropriate office a first-priority lien on the related real property (or on the Recipient's leasehold interest therein, as applicable);
(v) the Borrower Agent shall have certified on or before the closing date of such proposed acquisition, in writing and in received an environmental assessment report by a form reasonably qualified environmental consultant acceptable to the Administrative Agent Agent, in form and substance satisfactory to the LendersAgent, that such proposed acquisition has been approved which sets forth substantially the information required by the board of directors or equivalent governing body clause (b) of the Person to be acquireddefinition of Eligible Property;
(vi) no Default or Event of Default the Agent shall have occurred received an unconditional title insurance commitment, in form and be continuing both before issued by a title insurance company satisfactory to the Agent, to ensure the Borrower of a first lien on the appropriate real property and after giving effect to such proposed acquisitionwhich otherwise complies with the requirements of clause (d) of the definition of Eligible Property;
(vii) the Borrower shall own the property on which the improvements are to be constructed or have complied with Section 8.11;a binding contractual right to purchase such property; and
(viii) if the Borrower shall have delivered to the Administrative Agent and the Lenders improvements will become part of an Officer's Compliance Certificate dated as of the closing date of such proposed acquisition demonstrating, in form and substance reasonably satisfactory thereto, pro forma compliance with each covenant contained in Article IX (both before and after giving effect to such proposed acquisition) (it being agreed by the Borrower, the Administrative Agent and the Lenders Eligible Property that such calculations shall assume that all Debt assumed or incurred in conjunction with such proposed acquisition was incurred at the beginning of the applicable calculation period and that all income and expenses associated with such proposed acquisition shall be treated as earned and is already included in the pro-forma calculations (both on a consolidated and consolidating basis));
(ix) determination of the Borrower Borrowing Base, the Agent shall have at least $10,000,000 in Liquidity both before received an assignment of the promissory note required by the provisions of Section 10.4(iii) above and after giving effect to of all collateral for such proposed acquisition; and
(x) the Person to be acquired is not subject to material pending litigation which could reasonably be expected to have a Material Adverse Effect;
(d) intercompany loans and advances in connection with intercompany Debt permitted under Section 10.1(g);
(e) Hedging Agreements permitted pursuant to Section 10.1; andpromissory note.
(f) purchases any other investment or acquisition, with the prior written consent of assets in the ordinary course of businessRequired Lenders.
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 any Subsidiary), evidence of Debt 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:
(ai) investments (i) as of the Closing Date in Subsidiaries existing on the Closing Date in SubsidiariesDate, (ii) investments in Subsidiaries formed or acquired after the Closing Date so long as the Borrower and its Subsidiaries comply made in accordance with the applicable provisions terms and conditions of Section 8.11 this Agreement and (iii) the other loans, advances and investments existing on the Closing Date in the form of loans, advances and investments 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 (1201) days year from the date of acquisition thereof, (ii) commercial paper or variable or fixed rate notes maturing no more than one three hundred twenty sixty-four (120364) 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 McGraw-Hill Companies, Inc. xx Xxxxx'x Investors Service, Inx.S&P or Xxxxx'x, (xiiiii) certificates of deposit maturing no more than one three hundred twenty sixty-four (120364) days from the date of creation thereof issued by commercial banks incorporated under the laws of the United States of AmericaStates, each having combined capital, surplus and undivided profits of not less than $500,000,000 250,000,000 and having a rating of "A" or better by a nationally recognized rating agency; provided, that that, unless otherwise approved by the Administrative Agent, 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 three hundred sixty-four (30364) 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(v) any variable rate notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better by Xxxxx'x and maturing within six (6) months of the date of acquisition; (vi) auction preferred stocks having the highest short-term credit rating by S&P or Xxxxx'x; or (vii) other similar investments approved by the Administrative Agent.
(c) investments by the Borrower or any of its Subsidiaries in the form of acquisitions of all, all or substantially all or a majority of the stock or assets 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 such acquisition has been previously approved in writing by the Required Lenders;
(eachd) Hedging Agreements permitted pursuant to Section 10.1;
(e) purchases of assets in the ordinary course of business;
(f) 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 $100,000;
(g) intercompany Indebtedness permitted pursuant to Section 10.1(e);
(h) investments by the Borrower or any Subsidiary thereof in the form of acquisitions of all or substantially all of the business or a "Permitted Acquisition"); provided thatline 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:
(i) the Person to be acquired shall be a going concern, engaged in a business, substantially similar or the assets to be acquired shall be used in a business which is similar, related or complimentary to the complementary line of business of as the Borrower and its Subsidiaries as required pursuant to Section 10.12Borrower;
(ii) evidence of approval of the 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 or opines that such approval is not required shall be delivered to the Administrative Agent at the time the documents referred to in clause (vi) of this Section 10.3(h) 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 such any Subsidiary (unless the Person to be acquired complies with Section 8.11), as applicable, shall be the surviving Person and no Change in of Control shall have been effected thereby;
(iii) the Borrower shall have delivered written notice of such proposed acquisition to the Administrative Agent (for delivery by the Administrative Agent to the Lenders) and the Lenders, which notice shall include the proposed closing date of such proposed acquisition, not less than twenty (20) calendar days prior to such proposed closing date;
(iv) the Borrower shall have delivered to the Administrative Agent copies of the Permitted Acquisition Documents;
(v) the Borrower shall have certified on or before the closing date of such proposed acquisition, in writing and in a form reasonably acceptable demonstrated to the Administrative Agent and (A) pro forma compliance (as of the Lenders, that such date of the proposed acquisition has been approved by 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 board of directors or equivalent governing body manner set forth in, Article IX, (B) a pro forma Total Leverage Ratio (as of the Person date of the proposed acquisition and after giving effect thereto and any Extensions of Credit made or to be acquired;
made in connection therewith) less than or equal to 1.75 to 1.00, and (viC) no Default or Event of Default shall have occurred and be continuing both before and after giving effect to such proposed the acquisition;
(viivi) the Borrower shall have complied with Section 8.11;
(viii) if such person is a Material Subsidiary , the Borrower shall have delivered to the Administrative Agent and the Lenders an Officer's Compliance Certificate dated as of the closing date of such proposed acquisition demonstrating, in form and substance documents reasonably satisfactory thereto, pro forma compliance with each covenant contained in Article IX (both before and after giving effect to such proposed acquisition) (it being agreed requested by the BorrowerAdministrative 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 confirming that such Person is or will be a Guarantor hereunder, said documents to include a favorable opinion of counsel to the Borrower acceptable to the Administrative Agent addressed to the Administrative Agent and the Lenders that such calculations shall assume that all Debt assumed or incurred in conjunction with such proposed acquisition was incurred at respect to the beginning of the applicable calculation period and that all income and expenses associated with such proposed acquisition shall be treated as earned and included in the pro-forma calculations (both on a consolidated and consolidating basis));
(ix) the Borrower shall have at least $10,000,000 in Liquidity both before and after giving effect to such proposed acquisition; and
(x) Borrower, the Person to be acquired is not subject and the acquisition in form and substance reasonably acceptable to material pending litigation which could reasonably be expected to have a Material Adverse Effectthe Administrative Agent;
(dvii) intercompany loans the aggregate amount of cash consideration and advances any assumed debt, earn-outs (valued at an amount reasonably determined in good faith by the Borrower to be payable in connection with intercompany Debt permitted under Section 10.1(g);
(esuch earn-outs) Hedging Agreements permitted pursuant to Section 10.1or deferred payments for any such acquisition or series of related acquisitions shall not exceed $20,000,000; and
(fviii) purchases the Borrower shall 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 acquisition;
(i) investments by the Borrower or any Subsidiary thereof in Foreign Subsidiaries in an aggregate amount not to exceed $2,000,000 outstanding at any time during the term of this Agreement;
(j) investments in joint ventures (including a joint venture where the Borrower or a Subsidiary contributes assets in to the ordinary course joint venture); provided that the aggregate amount of businessall such investments does not exceed $2,000,000 outstanding at any time during the term of this Agreement; and
(k) additional loans, advances and/or investments of a nature not contemplated by the foregoing clauses hereof; provided that the aggregate amount or value of such loans, advances and/or investments made pursuant to this clause (k) shall not exceed $250,000 at any time.
Appears in 1 contract
Samples: Credit Agreement (Blackbaud Inc)
