No Investments. No Borrower shall, or shall permit any of its Subsidiaries to, directly or indirectly, make any Investment in any Person or consummate or agree to make an Acquisition other than: (A) Advances or loans made in the ordinary course of business to employees; (B) Cash Equivalents, subject to the requirement of SECTION 8.15; (C) Interest-bearing demand or time deposits (including certificates of deposit) which are insured by the Federal Deposit Insurance Corporation ("FDIC") or a similar federal insurance program, subject to the requirement of SECTION 8.15, however, provided that such Borrower may, in the ordinary course of its business, maintain in its disbursement accounts from time to time accounts in excess of then applicable FDIC or other program insurance limits; (D) Guaranties permitted under SECTION 8.6; (E) Investments by Borrowers in any Borrower or Subsidiary Guarantor or the Subsidiary Guarantors in other Subsidiary Guarantors or any Borrower; PROVIDED that (I) each such Borrower and Subsidiary Guarantor shall record all intercompany transactions on its books and records in a manner reasonably satisfactory to Agent, (II) at the time any such intercompany transaction is made, and after giving effect thereto, each such Borrower is Solvent as described in SECTION 6.2 hereto, (III) no Default or Event of Default exists or would occur after giving effect to such intercompany transaction; and (IV) if in the form of an intercompany loan, the obligations of each Borrower or Subsidiary Guarantor under any such intercompany loan shall be subordinated to the Obligations of such Borrower or Subsidiary Guarantor hereunder in a manner reasonably satisfactory to the Agent; (F) So long as no Default or Event of Default has occurred and is continuing, (I) Investments consisting of intercompany loans by any Credit Party to any Foreign Subsidiary made after February 10, 2004, in an amount not in excess of $15.0 million in the aggregate at any time outstanding, (II) Investments other than intercompany loans made by any Credit Party in any Foreign Subsidiary after February 10, 2004, in an amount not in excess of $5.0 million in the aggregate at any time outstanding and (III) Investments by any Credit Party in any Foreign Subsidiary made after February 10, 2004, in an amount not to exceed the amount of cash received by Credit Parties (whether as a return of capital, dividend, loan, interest or otherwise, but excluding trade payables or proceeds of asset sales between any Credit Party and any Foreign Subsidiary) from any Foreign Subsidiaries after February 10, 2004 but without duplication of amounts already credited in determining the amount of loans or other Investments permitted under CLAUSES (I) and (II) of this SECTION 8.8(F); (G) Investments made in connection with Acquisitions, PROVIDED that; (I) on the date of consummation of each such Acquisition, the Agent shall have received a certificate duly executed by a Responsible Officer of Xxxxxxx certifying that the financial condition referred to in CLAUSE (II) below with respect thereto is satisfied, together with evidence thereof reasonably satisfactory to the Agent, (II) the Consolidated Fixed Charge Coverage Ratio, determined on a pro forma basis for the period of four (4) consecutive Fiscal Quarters ending on the last day of the last completed Fiscal Quarter immediately preceding the proposed date of consummation of such Acquisition (on the assumption such Acquisition occurred on the first day of such four Fiscal Quarter period and using historical results of the Consolidated Entity and the related Acquisition Target for such period), shall be at least equal to the minimum ratio with respect to such period required pursuant to SECTION 8.1 (calculated without regard to the Availability requirement in SECTION 8.1), (III) each such Acquisition shall be consummated (X) in accordance with all material applicable Requirements of Law and the applicable Borrower and Acquisition Target shall have obtained all material consents and approvals of Governmental Authorities necessary in connection therewith and with the business operations of the related Acquisition Target after such Acquisition and (Y) pursuant to such agreements, documents and instruments as shall be in each case in form and substance reasonably satisfactory to the Agent, (IV) the related Acquisition Target shall be engaged in the same or substantially similar lines of business being conducted by the Borrowers on the Closing Date (or reasonable extensions thereof) and shall become or be merged into or be acquired by a Domestic Subsidiary contemporaneously with the consummation of such Acquisition, (V) no Default or Event of Default shall exist at the time of consummation thereof or would result therefrom, (VI) after giving effect to each such Acquisition, the Leverage Ratio for the twelve month period ending as of such day, is less than 3.0 to 1.00, and (VII) proceeds of Loans may be used to consummate (or make cash earnout payments in respect of) an Acquisition after the Closing Date only to the extent that (A) after giving effect to such Acquisition (or cash earnout payment, as the case may be), Average Excess Availability is at least equal to the greater of (X) $75,000,000 and (Y) the aggregate proceeds of Loans used to consummate such Acquisition (or make such cash earnout payment, as the case may be), and (B) the aggregate purchase price (including all Indebtedness assumed in connection therewith) after the Closing Date does not exceed $35,000,000 less the aggregate purchase price of all Acquisitions consummated pursuant to the following paragraph; Notwithstanding the limitations above, a Credit Party may make one or more Acquisitions from and after the Closing Date to the extent that the aggregate purchase price (including all Indebtedness assumed in connection with such Acquisition) of all such Acquisitions made from and after the Closing Date does not exceed $5.0 million, PROVIDED further that any such Acquisition shall only be subject to compliance with CLAUSES (I), (III), (IV) and (V) above. (H) Investments existing on the Closing Date and set forth on SCHEDULE B, PART 8.8. (I) So long as no Default or Event of Default has occurred and is continuing or would occur as the result thereof, any other Investment after the Closing Date in any other Person, the amount of all such Investments shall not exceed $5.0 million in the aggregate; (J) Cash and Cash Equivalents in a depository account in the name of the Agent and within the Agent's sole dominion and control (the "INVESTMENT ACCOUNT"), in which the Agent shall have at all times a perfected security interest for the benefit of the Secured Parties (as defined in the Security Agreement); (K) Investments by the Borrowers in the amounts, subject to the conditions and of the types described on EXHIBIT G. (L) Such other Investments as the Agent may approve in writing in its sole discretion.
Appears in 1 contract
Samples: Credit Agreement (Wellman Inc)
No Investments. No Borrower shall, or shall permit any of its Subsidiaries to, directly or indirectly, make any Investment in any Person or consummate or agree to make an Acquisition other than:
(A) Advances or loans made in the ordinary course of business to employees;
(Ba) Cash Equivalents, subject to the requirement of SECTION 8.15Section 2.4(e) (excess cash prepayment provision);
(Cb) Interest-bearing demand or time deposits (including certificates of deposit) which are insured by the Federal Deposit Insurance Corporation ("“FDIC"”) or a similar federal insurance program, subject to the requirement of SECTION 8.15Section 2.4(e) (excess cash prepayment provision), however, provided that such Borrower may, in the ordinary course of its business, maintain in its disbursement accounts from time to time accounts in excess of then applicable FDIC or other program insurance limits;
(Dc) Guaranties permitted under SECTION 8.6Section 8.7;
(Ed) Investments by Borrowers in any Borrower or Subsidiary Guarantor or the Subsidiary Guarantors in other Subsidiary Guarantors or any BorrowerBorrower made in the ordinary course of business; PROVIDED provided that (Ii) each such Borrower and Subsidiary Guarantor shall record all intercompany transactions on its books and records in a manner reasonably satisfactory to Agent, (II) at the time any such intercompany transaction is made, and after giving effect thereto, each such Borrower is Solvent as described in SECTION 6.2 hereto, (IIIii) no Default or Event of Default exists or would occur after giving effect to such intercompany transaction; and (IViii) if in the form of an intercompany loan, the obligations of each Borrower or Subsidiary Guarantor under any such intercompany loan shall be subordinated to the Obligations of such Borrower or Subsidiary Guarantor hereunder in a manner reasonably satisfactory to the Agent;
(F) So long as no Default or Event of Default has occurred and is continuing, (I) Investments consisting of intercompany loans by any Credit Party to any Foreign Subsidiary made after February 10, 2004, in an amount not in excess of $15.0 million in the aggregate at any time outstanding, (II) Investments other than intercompany loans made by any Credit Party in any Foreign Subsidiary after February 10, 2004, in an amount not in excess of $5.0 million in the aggregate at any time outstanding and (III) Investments by any Credit Party in any Foreign Subsidiary made after February 10, 2004, in an amount not to exceed the amount of cash received by Credit Parties (whether as a return of capital, dividend, loan, interest or otherwise, but excluding trade payables or proceeds of asset sales between any Credit Party and any Foreign Subsidiary) from any Foreign Subsidiaries after February 10, 2004 but without duplication of amounts already credited in determining the amount of loans or other Investments permitted under CLAUSES (I) and (II) of this SECTION 8.8(F);
(G) Investments made in connection with Acquisitions, PROVIDED that;
(I) on the date of consummation of each such Acquisition, the Agent shall have received a certificate duly executed by a Responsible Officer of Xxxxxxx certifying that the financial condition referred to in CLAUSE (II) below with respect thereto is satisfied, together with evidence thereof reasonably satisfactory to the Agent,
(II) the Consolidated Fixed Charge Coverage Ratio, determined on a pro forma basis for the period of four (4) consecutive Fiscal Quarters ending on the last day of the last completed Fiscal Quarter immediately preceding the proposed date of consummation of such Acquisition (on the assumption such Acquisition occurred on the first day of such four Fiscal Quarter period and using historical results of the Consolidated Entity and the related Acquisition Target for such period), shall be at least equal to the minimum ratio with respect to such period required pursuant to SECTION 8.1 (calculated without regard to the Availability requirement in SECTION 8.1),
(III) each such Acquisition shall be consummated (X) in accordance with all material applicable Requirements of Law and the applicable Borrower and Acquisition Target shall have obtained all material consents and approvals of Governmental Authorities necessary in connection therewith and with the business operations of the related Acquisition Target after such Acquisition and (Y) pursuant to such agreements, documents and instruments as shall be in each case in form and substance reasonably satisfactory to the Agent,
(IV) the related Acquisition Target shall be engaged in the same or substantially similar lines of business being conducted by the Borrowers on the Closing Date (or reasonable extensions thereof) and shall become or be merged into or be acquired by a Domestic Subsidiary contemporaneously with the consummation of such Acquisition,
(V) no Default or Event of Default shall exist at the time of consummation thereof or would result therefrom,
(VI) after giving effect to each such Acquisition, the Leverage Ratio for the twelve month period ending as of such day, is less than 3.0 to 1.00, and
(VII) proceeds of Loans may be used to consummate (or make cash earnout payments in respect of) an Acquisition after the Closing Date only to the extent that (A) after giving effect to such Acquisition (or cash earnout payment, as the case may be), Average Excess Availability is at least equal to the greater of (X) $75,000,000 and (Y) the aggregate proceeds of Loans used to consummate such Acquisition (or make such cash earnout payment, as the case may be), and (B) the aggregate purchase price (including all Indebtedness assumed in connection therewith) after the Closing Date does not exceed $35,000,000 less the aggregate purchase price of all Acquisitions consummated pursuant to the following paragraph; Notwithstanding the limitations above, a Credit Party may make one or more Acquisitions from and after the Closing Date to the extent that the aggregate purchase price (including all Indebtedness assumed in connection with such Acquisition) of all such Acquisitions made from and after the Closing Date does not exceed $5.0 million, PROVIDED further that any such Acquisition shall only be subject to compliance with CLAUSES (I), (III), (IV) and (V) above.
(He) Investments existing on the Closing Date and set forth on SCHEDULE Schedule B, PART 8.8.Part 8.9; and
(I) So long as no Default or Event of Default has occurred and is continuing or would occur as the result thereof, any other Investment after the Closing Date in any other Person, the amount of all such Investments shall not exceed $5.0 million in the aggregate;
(Jf) Cash and Cash Equivalents in a depository account in the name of the Agent and within the Agent's ’s sole dominion and control (the "INVESTMENT ACCOUNT"“Investment Account”), in which the Agent shall have at all times a perfected security interest for the benefit of the Secured Parties (as defined in the Security Agreement);
(K) Investments by the Borrowers in the amounts, subject to the conditions and of the types described on EXHIBIT G.
(L) Such other Investments as the Agent may approve in writing in its sole discretion.
Appears in 1 contract
Samples: Credit Agreement (Wellman Inc)
No Investments. No Borrower shall, or shall permit any of its Subsidiaries to, directly or indirectly, make any Investment in any Person or consummate or agree to make an Acquisition other than:
(Aa) Investments in existence on the Closing Date which are set forth on Schedule B, Part 8.9;
(b) Advances or loans to employees made in the ordinary course of business to employeesbusiness;
(B) Cash Equivalents, subject to the requirement of SECTION 8.15;
(Cc) Interest-bearing demand or time deposits (including certificates of deposit) which are insured by the Federal Deposit Insurance Corporation ("FDIC") or a similar federal insurance program, subject to the requirement of SECTION 8.15, ; however, provided that such Borrower may, in the ordinary course of its business, maintain in its disbursement accounts from time to time accounts in excess of then applicable FDIC or other program insurance limits;
(D) Guaranties permitted under SECTION 8.6;
(Ed) Investments by Borrowers in any Borrower or Subsidiary Guarantor or the Subsidiary Guarantors in other Subsidiary Guarantors or any Borrower; PROVIDED that (I) each such Borrower and Subsidiary Guarantor shall record all intercompany transactions on its books and records in a manner reasonably satisfactory to Agent, (II) at the time any such intercompany transaction is made, and after giving effect thereto, each such Borrower is Solvent as described in SECTION 6.2 hereto, (III) no Default or Event of Default exists or would occur after giving effect to such intercompany transaction; and (IV) if in the form of an intercompany loan, the obligations of each Borrower or Subsidiary Guarantor under any such intercompany loan shall be subordinated to the Obligations of such Borrower or Subsidiary Guarantor hereunder in a manner reasonably satisfactory to the Agent;
(F) So long as no Default or Event of Default has occurred and is continuing, (I) Investments consisting of intercompany loans by any Credit Party to any Foreign Subsidiary made after February 10, 2004, in an amount not in excess of $15.0 million in the aggregate at any time outstanding, (II) Investments other than intercompany loans made by any Credit Party in any Foreign Subsidiary after February 10, 2004, in an amount not in excess of $5.0 million in the aggregate at any time outstanding and (III) Investments by any Credit Party in any Foreign Subsidiary made after February 10, 2004, in an amount not to exceed the amount of cash received by Credit Parties (whether as a return of capital, dividend, loan, interest or otherwise, but excluding trade payables or proceeds of asset sales between any Credit Party and any Foreign Subsidiary) from any Foreign Subsidiaries after February 10, 2004 but without duplication of amounts already credited in determining the amount of loans or other Investments permitted under CLAUSES (I) and (II) of this SECTION 8.8(F);
(G) Investments made in connection with Acquisitions, PROVIDED provided that;:
(Ii) on the date of consummation of each such Acquisition, the Agent shall have received a certificate duly executed by a Responsible Officer of Xxxxxxx BWAY certifying that the financial condition referred to in CLAUSE clause (IIii) below with respect thereto is satisfied, together with evidence thereof reasonably satisfactory to the Agent,
(IIii) the Consolidated Fixed Charge Coverage Ratio, determined on a pro forma basis (after giving effect to any Permitted Pro Forma Acquisition Adjustments in connection with such Acquisition) for the period of four (4) consecutive Fiscal Quarters ending on the last day of the last completed Fiscal Quarter immediately preceding the proposed date of consummation of such Acquisition (on the assumption such Acquisition occurred on the first day of such four Fiscal Quarter period and using historical results of the Consolidated Entity and the related Acquisition Target for such period), shall be at least equal to the minimum ratio with respect to such period required pursuant to SECTION 8.1 (calculated without regard to the Availability requirement in SECTION Section 8.1),
(IIIiii) each such Acquisition shall be consummated (Xx) in accordance with all material applicable Requirements of Law and the applicable Borrower and Acquisition Target shall have obtained all material consents and approvals of Governmental Authorities necessary in connection therewith and with the business operations of the related Acquisition Target after such Acquisition and (Yy) pursuant to such agreements, documents and instruments as shall be in each case in form and substance reasonably satisfactory to the Agent,
(IViv) the related Acquisition Target shall be engaged in the same or substantially similar lines of business being conducted by the Borrowers on the Closing Date (or reasonable extensions thereof) and shall become or be merged into or be acquired by a Domestic Subsidiary contemporaneously with the consummation of such Acquisition),
(Vv) no Default or Event of Default shall exist at the time of consummation thereof or would result therefrom,
(VIvi) after giving effect to each such Acquisition, the Leverage Ratio ratio of Consolidated Total Indebtedness as of the last day of the Fiscal Quarter ending immediately prior to the Fiscal Quarter in which such Acquisition is consummated, to Consolidated EBITDA for the twelve month period ending as of such day, is less than 3.0 4.0 to 1.00, and
(VIIvii) proceeds of Revolving Loans may be used to consummate (or make cash earnout payments in respect of) an Acquisition after the Closing Date only to the extent that (A) after giving effect to such Acquisition (or cash earnout payment, as the case may be), Average Excess Availability unused availability under the Borrowing Base is at least equal to the greater of (Xx) $75,000,000 20,000,000 and (Yy) the aggregate proceeds of Revolving Loans used to consummate such Acquisition (or make such cash earnout payment, as the case may be), and (B) the aggregate purchase price proceeds of Revolving Loans used to consummate all Acquisitions (including all Indebtedness assumed in connection therewithor make cash earnout payments, as the case may be) after the Closing Date does not exceed $35,000,000 less 35,000,000;
(e) extensions of trade credit in the aggregate purchase price ordinary course of all Acquisitions consummated business;
(f) Investments expressly permitted pursuant to Sections 8.3, 8.7, 8.8, 8.10 and 8.17;
(g) non-cash consideration issued in connection with the following paragraph; Notwithstanding sale, lease, transfer or other disposition of assets, to the limitations aboveextent expressly permitted by Section 8.5;
(h) Investments received in connection with the bankruptcy or reorganization of suppliers and customers, and Investments received in good faith settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;
(i) Cash Equivalents, to the extent the Agent has a Credit Party may make one perfected, first priority Lien thereon securing all Obligations;
(j) Investments by any Borrower in any other Borrower;
(k) Investments consisting of payments made by any Borrower in respect of indemnification obligations then due and payable to directors, officers, employees and other Persons under such Borrower's Governing Documents, any Employment Agreements or more Acquisitions from and any other written agreements with any such Person entered into after the Closing Date to by BWAY in the extent that the aggregate purchase price ordinary course of business;
(l) Investments (including all Indebtedness assumed Investments consisting of Joint Ventures) in connection with such Acquisitionaddition to those permitted under clauses (a) of all such Acquisitions made from through (k) above; provided, that (i) before and after the Closing Date does not exceed $5.0 milliongiving effect to each such Investment, PROVIDED further that any such Acquisition shall only be subject to compliance with CLAUSES (I), (III), (IV) and (V) above.
(H) Investments existing on the Closing Date and set forth on SCHEDULE B, PART 8.8.
(I) So long as no Default or Event of Default has shall have occurred and is continuing be continuing, (ii) the aggregate amount, without duplication, of all Investments made by Borrowers and their respective Subsidiaries on or would occur as the result thereof, any other Investment after the Closing Date in any other Person, the amount of all such Investments pursuant to this clause (l) shall not exceed $5.0 million in 3,000,000, and (iii) the aggregate;aggregate amount, without duplication, of all such Investments, when aggregated with the outstanding principal amount of Indebtedness Guaranteed by any Borrower or any Subsidiary of any Borrower pursuant to Section 8.7(g) or (h), respectively, shall not exceed $5,000,000; and
(J) Cash and Cash Equivalents in a depository account in the name of the Agent and within the Agent's sole dominion and control (the "INVESTMENT ACCOUNT"), in which the Agent shall have at all times a perfected security interest for the benefit of the Secured Parties (as defined in the Security Agreement);
(Km) Investments by the Borrowers in the amounts, subject addition to the conditions and of the types described on EXHIBIT G.
those permitted under clauses (La) Such other Investments through (l) above as the Agent may approve in writing in its sole discretion.
Appears in 1 contract
Samples: Credit Agreement (Bway Corp)
No Investments. No Borrower shall, or shall permit any of its -------------- Subsidiaries to, directly or indirectly, make any Investment in any Person or consummate or agree to make an Acquisition other than:
(Aa) Advances or loans to employees made in the ordinary course of business to employeesbusiness;
(Bb) Cash Equivalents, subject to the requirement of SECTION 8.15;
(Cc) Interest-bearing demand or time deposits (including certificates of deposit) which are insured by the Federal Deposit Insurance Corporation ("FDIC") or a similar federal insurance program, subject to the requirement of SECTION 8.15, ; however, provided that such Borrower may, in the ordinary course of its business, maintain in its disbursement accounts from time to time accounts in excess of then applicable FDIC or other program insurance limits;
(Dd) Guaranties guaranties permitted under SECTION 8.6Section 8.7;
(Ee) Investments by Borrowers in any Borrower or Subsidiary Guarantor or the Subsidiary Guarantors in other Subsidiary Guarantors or any Borrower; PROVIDED that (I) each such Borrower and Subsidiary Guarantor shall record all intercompany transactions on its books and records in a manner reasonably satisfactory to Agent, (II) at the time any such intercompany transaction is made, and after giving effect thereto, each such Borrower is Solvent as described in SECTION 6.2 hereto, (III) no Default or Event of Default exists or would occur after giving effect to such intercompany transaction; and (IV) if in the form of an intercompany loan, the obligations of each Borrower or Subsidiary Guarantor under any such intercompany loan shall be subordinated to the Obligations of such Borrower or Subsidiary Guarantor hereunder in a manner reasonably satisfactory to the Agent;
(F) So long as no Default or Event of Default has occurred and is continuing, (I) Investments consisting of intercompany loans by any Credit Party to any Foreign Subsidiary made after February 10, 2004, in an amount not in excess of $15.0 million in the aggregate at any time outstanding, (II) Investments other than intercompany loans made by any Credit Party in any Foreign Subsidiary after February 10, 2004, in an amount not in excess of $5.0 million in the aggregate at any time outstanding and (III) Investments by any Credit Party in any Foreign Subsidiary made after February 10, 2004, in an amount not to exceed the amount of cash received by Credit Parties (whether as a return of capital, dividend, loan, interest or otherwise, but excluding trade payables or proceeds of asset sales between any Credit Party and any Foreign Subsidiary) from any Foreign Subsidiaries after February 10, 2004 but without duplication of amounts already credited in determining the amount of loans or other Investments Indebtedness permitted under CLAUSES (ISections 8.3(d) and (II) of this SECTION 8.8(Fe);; and
(Gf) Investments made investments in connection with Acquisitions, PROVIDED provided that;:
(Ii) not later than thirty (30) days prior to the date of consummation of each Acquisition, the Agent shall have received (with results satisfactory to the Agent) a due diligence report in connection therewith in form and substance satisfactory to the Agent in its sole discretion prepared by the Auditors (or another nationally-recognized firm of independent certified public accountants selected by the Borrowers and satisfactory to the Agent in its sole discretion), the scope of such due diligence report, and the specific procedures utilized in the preparation thereof, to be approved in writing by the Agent prior to the commencement of any field or other work performed in connection therewith,
(ii) on the date of consummation of each such Acquisition, the Agent shall have received a certificate duly executed by a Responsible Officer of Xxxxxxx Parent certifying that the financial condition referred to in CLAUSE clause (IIiii) below with respect thereto is satisfied, together with evidence thereof reasonably satisfactory to the Agent,
(IIiii) the Consolidated Fixed Charge Coverage Ratio, determined on a pro forma basis (giving effect to adjustments to conform accounting policies, to reflect reduction of compensation and, to the extent agreed to by the Agent in its sole discretion, other anticipated cost savings) for the period of four (4) consecutive Fiscal Quarters ending on the last day of the last completed Fiscal Quarter immediately preceding the proposed date of consummation of such Acquisition (on the assumption such Acquisition occurred on the first day of such four Fiscal Quarter period and using historical results of the Consolidated Entity and the related Acquisition Target Prospect for such period), shall be at least equal to the minimum ratio with respect to such period required pursuant to SECTION 8.1 (calculated without regard to the Availability requirement in SECTION Section 8.1),
(IIIiv) each such Acquisition shall be consummated (Xx) in accordance with all material applicable Requirements of Law and the applicable Borrower and Acquisition Target shall have obtained all material consents and approvals of Governmental Authorities necessary in connection therewith and with the business operations of the related Acquisition Target after such Acquisition and (Yy) pursuant to such agreements, documents and instruments as shall be in each case in form and substance reasonably satisfactory to the AgentAgent in its sole discretion,
(IVv) the related Acquisition Target shall be engaged in the same or substantially similar lines of business currently being conducted by the Borrowers on the Closing Date (or reasonable extensions thereof) and shall become or be merged into or be acquired by a Domestic Subsidiary contemporaneously with the consummation of such AcquisitionBorrowers,
(Vvi) no Default or Event of Default shall exist at the time of consummation thereof or would result therefrom,
(VIvii) before and after giving to each such Acquisition, the lesser at such time of (x) the Line of Credit and (y) the Borrowing Base minus, in each case, Total Exposure shall not be less than $25,000,000,
(viii) before and after giving effect to each such Acquisition, the Leverage Ratio ratio of Consolidated Total Indebtedness as of the last day of the Fiscal Quarter ending immediately prior to the Fiscal Quarter in which such Acquisition is consummated, to Consolidated EBITDA for the twelve month period ending as of such day, is less than 3.0 3.75 to 1.00,
(ix) the Fiscal Quarter during which such Acquisition is consummated is no earlier than the second Fiscal Quarter of the 2002 Fiscal Year, and
(VIIx) proceeds of Loans may be used to consummate (or make cash earnout payments in respect of) an Acquisition after the Closing Date only to the extent that (A) after giving effect to such Acquisition is structured as an asset purchase and does not result in the assumption of any Liabilities by any Credit Party other than (or cash earnout payment, as i) trade and operating lease payables incurred by the case may be), Average Excess Availability is at least equal to Acquisition Target in the greater ordinary course of (X) $75,000,000 business and (Yii) such other Liabilities incurred by the Acquisition Target in the ordinary course of business and reasonably acceptable to Agent, and
(xi) the aggregate proceeds of Loans used to consummate such Acquisition (or make such cash earnout payment, as the case may be), and (B) the aggregate purchase price total consideration (including all Indebtedness assumed in connection therewithequity roll-overs, non- compete and earn-out payments and any other similar forms of consideration) after paid by the Closing Date does not exceed $35,000,000 less the aggregate purchase price of all Acquisitions consummated pursuant to the following paragraph; Notwithstanding the limitations above, a Credit Party may make one or more Acquisitions from and after the Closing Date to the extent that the aggregate purchase price (including all Indebtedness assumed Borrowers in connection with such Acquisition) of all , when added to the total such Acquisitions made from and after the Closing Date does not exceed $5.0 million, PROVIDED further that any such Acquisition shall only be subject to compliance with CLAUSES (I), (III), (IV) and (V) above.
(H) Investments existing on the Closing Date and set forth on SCHEDULE B, PART 8.8.
(I) So long as no Default or Event of Default has occurred and is continuing or would occur as the result thereof, any other Investment after the Closing Date in any other Person, the amount of all such Investments shall not exceed $5.0 million in the aggregate;
(J) Cash and Cash Equivalents in a depository account in the name of the Agent and within the Agent's sole dominion and control (the "INVESTMENT ACCOUNT"), in which the Agent shall have at all times a perfected security interest for the benefit of the Secured Parties (as defined in the Security Agreement);
(K) Investments consideration paid by the Borrowers in connection with all other Acquisitions consummated after the amountsClosing Date, subject does not exceed in the aggregate $10,000,000 plus, to the conditions and extent that, in the absence of such allocation, the total consideration paid by the Borrowers in connection with Acquisitions would exceed such amount, that portion of the types described on EXHIBIT G.Excess Cash Flow Allowance, if any, allocated to the consummation of any Acquisition pursuant to a certificate of a Responsible Officer of the Funds Administrator delivered to the Agent (any such allocation to be irrevocable and binding upon the Funds Administrator and the Borrowers); and
(Lg) Such other Investments as the Agent may approve in writing in its sole discretion.
Appears in 1 contract
Samples: Credit Agreement (Bway Corp)
No Investments. No Borrower Credit Party shall, or shall permit any of its Subsidiaries to, directly or indirectly, make any Investment in any Person or consummate or agree to make an Acquisition other than:: 108
(Aa) Advances or loans made in the ordinary course of business to employeesemployees not to exceed in the aggregate for all Credit Parties combined, $500,000, outstanding at any one time to any one employee and $2,000,000 in the aggregate outstanding at any one time;
(Bb) Cash Equivalents, subject to the requirement of SECTION 8.158.16 and the restrictions in SECTION 8.17, and other investments outstanding on the date hereof and listed on Schedule B, Part 8.9;
(Cc) Interest-bearing demand or time deposits (including certificates of deposit) which are insured by the Federal Deposit Insurance Corporation ("FDIC") or a similar federal insurance program, subject to the requirement of SECTION 8.158.16, however, provided that such Borrower may, in the ordinary course of its business, maintain in its disbursement accounts from time to time accounts in excess of then applicable FDIC or other program insurance limits;
(Dd) Guaranties permitted under SECTION 8.68.7;
(Ee) Investments Intercompany loans made by Borrowers any Credit Party or any Foreign Subsidiary to any Credit Party either in existence on the date hereof and scheduled on SCHEDULE G or made after the Closing Date and otherwise permitted under this Credit Agreement; PROVIDED that, in any Borrower such case, (i) each Credit Party or Subsidiary Guarantor receiving such loans shall have executed and delivered to the lending Credit Party or Foreign Subsidiary a subordinated demand note, in form and substance satisfactory to Agent, to evidence such intercompany loans which demand note shall be pledged, in the Subsidiary Guarantors in other Subsidiary Guarantors or case of a Credit Party as payee of such note (but no pledge of any Borrower; PROVIDED that note shall be required when the payee of any such note is a Foreign Subsidiary), to Agent as additional collateral security for the Obligations, (Iii) each such Borrower and Credit Party or Subsidiary Guarantor shall record all intercompany transactions on its books and records in a manner reasonably satisfactory to Agent, (IIiii) at the time any such intercompany transaction loan is made, and after giving effect thereto, each such Borrower Credit Party is Solvent solvent as described in SECTION 6.2 heretohereof, (IIIiv) no Default or Event of Default exists or would occur after giving effect to such intercompany transaction; and (IV) if in the form of an intercompany loan, (v) the obligations of each Borrower or Subsidiary Guarantor Credit Party under any such intercompany loan shall be subordinated to the Obligations of such Borrower Credit Party hereunder or Subsidiary Guarantor hereunder under any other Credit Document in a manner reasonably satisfactory to Agent; and (vi), in the Agentcase of a loan by a Foreign Subsidiary, no payment in respect of such loan shall be made if it would result in a breach of Section 8.8(b);
(Ff) So long as no Default or Event of Default has occurred and is continuing, (I) Investments consisting of intercompany loans by any Credit Party to any Foreign Subsidiary made after February 10, 2004, in an amount not in excess of $15.0 million in the aggregate at any time outstanding, (II) Investments other than intercompany Intercompany loans made by any Credit Party in any to a Foreign Subsidiary after February 10, 2004, either in an amount not in excess of $5.0 million in the aggregate at any time outstanding and (III) Investments by any Credit Party in any Foreign Subsidiary made after February 10, 2004, in an amount not to exceed the amount of cash received by Credit Parties (whether as a return of capital, dividend, loan, interest or otherwise, but excluding trade payables or proceeds of asset sales between any Credit Party and any Foreign Subsidiary) from any Foreign Subsidiaries after February 10, 2004 but without duplication of amounts already credited in determining the amount of loans or other Investments permitted under CLAUSES (I) and (II) of this SECTION 8.8(F);
(G) Investments made in connection with Acquisitions, PROVIDED that;
(I) existence on the date hereof and scheduled on SCHEDULE G or made after the Closing Date and permitted under this Credit Agreement; PROVIDED that, in the case of consummation of such intercompany loans made after the Closing Date, (i) each Foreign Subsidiary receiving such Acquisition, the Agent loans shall have received a certificate duly executed by a Responsible Officer of Xxxxxxx certifying that the financial condition referred to in CLAUSE (II) below with respect thereto is satisfied, together with evidence thereof reasonably satisfactory and delivered to the Agent,
(II) the Consolidated Fixed Charge Coverage Ratiolending Credit Party a subordinated demand note, determined on a pro forma basis for the period of four (4) consecutive Fiscal Quarters ending on the last day of the last completed Fiscal Quarter immediately preceding the proposed date of consummation of such Acquisition (on the assumption such Acquisition occurred on the first day of such four Fiscal Quarter period and using historical results of the Consolidated Entity and the related Acquisition Target for such period), shall be at least equal to the minimum ratio with respect to such period required pursuant to SECTION 8.1 (calculated without regard to the Availability requirement in SECTION 8.1),
(III) each such Acquisition shall be consummated (X) in accordance with all material applicable Requirements of Law and the applicable Borrower and Acquisition Target shall have obtained all material consents and approvals of Governmental Authorities necessary in connection therewith and with the business operations of the related Acquisition Target after such Acquisition and (Y) pursuant to such agreements, documents and instruments as shall be in each case in form and substance reasonably satisfactory to the Agent,
(IV) the related Acquisition Target , to evidence such intercompany loans which demand note shall be engaged pledged to Agent as additional collateral security for the Obligations (except that loans by Holdings to Grant Prideco Canada Ltd. which are reported as equity consideration for U.S. tax purposes are not required to be pledged hereunder), (ii) each such Credit Party shall record all intercompany transactions on its books and records in a manner satisfactory to Agent, (iii) at the same or substantially similar lines of business being conducted by the Borrowers on the Closing Date time any such intercompany loan is made, and after giving thereto, each such Credit Party is solvent as described in SECTION 6.2 hereof, (or reasonable extensions thereof) and shall become or be merged into or be acquired by a Domestic Subsidiary contemporaneously with the consummation of such Acquisition,
(Viv) no Default or Event of Default shall exist at the time of consummation thereof exists or would result therefrom,
(VI) after giving effect to each such Acquisition, the Leverage Ratio for the twelve month period ending as of such day, is less than 3.0 to 1.00, and
(VII) proceeds of Loans may be used to consummate (or make cash earnout payments in respect of) an Acquisition after the Closing Date only to the extent that (A) occur after giving effect to such Acquisition intercompany loan, (v) the obligations of each Credit Party under any such intercompany loan shall be subordinated to the Obligations of such Credit Party hereunder or under any other 109 Credit Document in a manner satisfactory to Agent, and (vi) the making of such Intercompany Loan to such Foreign Subsidiary shall not result in a breach of Section 8.8(b);
(g) Acquisitions of Capital Securities of any Person or assets of a Person comprising a business (subject to all other restrictions set forth in this Credit Agreement) including Capital Securities of a new Domestic Subsidiary or Canadian Subsidiary, and investments in or loans to Intelliserv/Composite not exempted by Section 8.9(l), below, provided (i) any such Capital Securities and/or assets shall be pledged to the Agents, in their capacities as collateral agents, (ii) that such investments in Intelliserv/Composite and the amount of consideration paid (cash or otherwise, including any existing Indebtedness of such Person or assumed Indebtedness permitted by Section 8.3(h) and excluding any consideration paid in Qualified Stock of Grant Prideco, Inc. as permitted in (i) below) for such Capital Securities and/or assets shall not exceed in value $25,000,000 per year or $50,000,000 in the aggregate and (iii) that immediately after giving effect to any such investment or acquisition on a pro forma basis, the Revolver Availability would be no less than $30,000,000. For avoidance of doubt, the exemption created by this Section 8.9(g) does not exempt investments in existing Subsidiaries, except to the extent the proceeds thereof are used to acquire a Person or assets as contemplated hereby.
(h) The acquisition or ownership of Capital Securities or obligations or other securities received in settlement of debts owing to Grant Prideco, Inc. or any Subsidiary thereof (other than Eligible Accounts Receivable) created and settled in the ordinary course of business, which Capital Securities, obligations or other securities have been pledged to the Agent (or cash earnout paymentthe Canadian Agent, as the case may be), Average Excess Availability is at least equal ) pursuant to documentation satisfactory to the greater Agent.
(i) Any Investment in any Person to the extent the consideration paid consists of Qualified Stock of Grant Prideco, Inc.;
(Xj) $75,000,000 and The acquisition of Capital Securities of any Credit Party or Domestic Subsidiary or Canadian Borrower by another Credit Party or Domestic Subsidiary or Canadian Borrower if the acquiring Person would be permitted to have the other Credit Party or Subsidiary thereof merge into it pursuant to Section 8.6 hereof and, if the pledge of the securities of such acquired Person as required by this Credit Agreement is not prohibited by any Material Contract;
(Yk) Accounts receivable payable by third parties to Foreign Subsidiaries arising in the aggregate proceeds ordinary course of Loans used business that are not paid when due (regardless of whether such amounts may remain unpaid for more than one year);
(l) Investments in Intelliserv/Composite not to consummate such Acquisition (or make such cash earnout payment, as the case may be), and (B) the aggregate purchase price (including all Indebtedness assumed in connection therewith) after the Closing Date does not exceed $35,000,000 less the aggregate purchase price of all Acquisitions consummated pursuant 10,000,000 per year to the following paragraph; Notwithstanding the limitations abovefund research and development, a Credit Party may make one or more Acquisitions from and after the Closing Date technology commercialization to the extent that those investments are reflected (in accordance with GAAP) as expenditures in the aggregate purchase price determination of Consolidated Net Income;
(including all Indebtedness assumed m) Equity investments in connection with Foreign Subsidiaries, PROVIDED that, in the case of such Acquisition) of all such Acquisitions investments made from and after the Closing Date does not exceed $5.0 millionDate, PROVIDED further that (i) 65% of the Capital Securities of such Foreign Subsidiary have been pledged to the US Agent in form and substance satisfactory to US Agent, (ii) at the time any such Acquisition shall only be subject to compliance with CLAUSES (I)investment is made, and after giving effect thereto, each such Credit Party is solvent as described in SECTION 6.2 hereof, (III), (IViii) and (V) above.
(H) Investments existing on the Closing Date and set forth on SCHEDULE B, PART 8.8.
(I) So long as no Default or Event of Default has occurred and is continuing exists or would 110 occur as the after giving effect to such intercompany loan, and (iv) such investment does not result thereof, any other Investment after the Closing Date in any other Person, the amount of all such Investments shall not exceed $5.0 million in the aggregate;
(J) Cash and Cash Equivalents in a depository account in the name breach of the Agent and within the Agent's sole dominion and control (the "INVESTMENT ACCOUNT"), in which the Agent shall have at all times a perfected security interest for the benefit of the Secured Parties (as defined in the Security AgreementSection 8.8(b);
(K) Investments by the Borrowers in the amounts, subject to the conditions and of the types described on EXHIBIT G.
(Ln) Such other Investments as the US Agent may approve in writing in its sole discretion, provided that such other Investments shall not exceed $1,000,000 per Investment or $3,000,000 in the aggregate;
(o) Investments in the remaining 35% equity interests of Rotator AS not owned by Credit Parties as of the Closing Date, not to exceed $5,000,000 in the aggregate, purchased for the purpose of acquiring 100% ownership of Rotator AS; and
(p) Permitted Hedging Transactions.
Appears in 1 contract
Samples: Credit Agreement (Grant Prideco Inc)
No Investments. No Borrower shall, or shall permit any of its Subsidiaries to, directly or indirectly, make any Investment in any Person or consummate or agree to make an Acquisition other than:
(Aa) Advances or loans made in the ordinary course of business to employees;
(Bb) Cash Equivalents, subject to the requirement of SECTION 8.158.16;
(Cc) Interest-bearing demand or time deposits (including certificates of deposit) which are insured by the Federal Deposit Insurance Corporation ("FDIC") or a similar federal insurance program, subject to the requirement of SECTION 8.158.16, however, provided that such Borrower may, in the ordinary course of its business, maintain in its disbursement accounts from time to time accounts in excess of then applicable FDIC or other program insurance limits;
(Dd) Guaranties permitted under SECTION 8.68.7;
(Ee) Investments by Borrowers in any Borrower or Subsidiary Guarantor or the Subsidiary Guarantors in other Subsidiary Guarantors or any BorrowerGuarantor; PROVIDED that (Ii) each such Borrower and Subsidiary Guarantor shall record all intercompany transactions on its books and records in a manner reasonably satisfactory to Agent, (IIii) at the time any such intercompany transaction is made, and after giving effect thereto, each such Borrower is Solvent solvent as described in SECTION 6.2 hereto, (IIIiii) no Default or Event of Default exists or would occur after giving effect to such intercompany transaction; and (IViv) if in the form of an intercompany loan, the obligations of each Borrower or Domestic Subsidiary Guarantor under any such intercompany loan shall be subordinated to the Obligations of such Borrower or Domestic Subsidiary Guarantor hereunder in a manner reasonably satisfactory to the Agent;
(Ff) So long as no Default or Event of Default has occurred and is continuing, (I) Investments consisting of intercompany loans by any Credit Party Borrower or any Domestic Subsidiary to any Foreign Subsidiary made after February 10, 2004, the Closing Date in an amount not in excess of $15.0 million in the aggregate at any time outstanding, (II) outstanding and Investments other than intercompany loans made by any Credit Party Borrower or any Domestic Subsidiary in any Foreign Subsidiary after February 10, 2004, the Closing Date in an amount not in excess of $5.0 million in the aggregate at any time outstanding and (III) Investments by any Credit Party in any Foreign Subsidiary made after February 10, 2004, in an amount not to exceed the amount of cash received by Credit Parties (whether as a return of capital, dividend, loan, interest or otherwise, but excluding trade payables or proceeds of asset sales between any Credit Party and any Foreign Subsidiary) from any Foreign Subsidiaries after February 10, 2004 but without duplication of amounts already credited in determining the amount of loans or other Investments permitted under CLAUSES (I) and (II) of this SECTION 8.8(F)outstanding;
(Gg) Investments made in connection with Acquisitions, PROVIDED that;
(Ii) on the date of consummation of each such Acquisition, the Agent shall have received a certificate duly executed by a Responsible Officer of Xxxxxxx certifying that the financial condition referred to in CLAUSE clause (IIii) below with respect thereto is satisfied, together with evidence thereof reasonably satisfactory to the Agent,
(IIii) the Consolidated Fixed Charge Coverage Ratio, determined on a pro forma basis for the period of four (4) consecutive Fiscal Quarters ending on the last day of the last completed Fiscal Quarter immediately preceding the proposed date of consummation of such Acquisition (on the assumption such Acquisition occurred on the first day of such four Fiscal Quarter period and using historical results of the Consolidated Entity and the related Acquisition Target for such period), shall be at least equal to the minimum ratio with respect to such period required pursuant to SECTION 8.1 (calculated without regard to the Availability requirement in SECTION 8.1),
(IIIiii) each such Acquisition shall be consummated (Xx) in accordance with all material applicable Requirements of Law and the applicable Borrower and Acquisition Target shall have obtained all material consents and approvals of Governmental Authorities necessary in connection therewith and with the business operations of the related Acquisition Target after such Acquisition and (Y) pursuant to such agreements, documents and instruments as shall be in each case in form and substance reasonably satisfactory to the Agent,
(IViv) the related Acquisition Target shall be engaged in the same or substantially similar lines of business being conducted by the Borrowers on the Closing Date (or reasonable extensions thereof) and shall become or be merged into or be acquired by a Domestic Subsidiary contemporaneously with the consummation of such Acquisition,
(Vv) no Default or Event of Default shall exist at the time of consummation thereof or would result therefrom,
(VIvi) after giving effect to each such Acquisition, the Leverage Ratio for the twelve month period ending as of such day, is less than 3.0 to 1.00, and
(VIIvii) proceeds of Loans may be used to consummate (or make cash earnout payments in respect of) an Acquisition after the Closing Date only to the extent that (A) after giving effect to such Acquisition (or cash earnout payment, as the case may be), Average Excess Normalized Availability is at least equal to the greater of (Xx) $75,000,000 and (Yy) the aggregate proceeds of Loans used to consummate such Acquisition (or make such cash earnout payment, as the case may be), and (B) the aggregate purchase price (including all Indebtedness assumed in connection therewith) after the Closing Date does not exceed $35,000,000 less the aggregate purchase price of all Acquisitions consummated pursuant to the following paragraph; Notwithstanding the limitations above, a Credit Party may make one or more Acquisitions from and after the Closing Date to the extent that the aggregate purchase price (including all Indebtedness assumed in connection with such Acquisition) of all such Acquisitions made from and after the Closing Date does not exceed $5.0 million, PROVIDED further that any such Acquisition shall only be subject to compliance with CLAUSES (Ii), (IIIiii), (IViv) and (Vv) above.
(Hh) Investments existing on the Closing Date and set forth on SCHEDULE B, PART 8.88.9.
(Ii) So long as no Default or Event of Default has occurred and is continuing or would occur as the result thereof, any other Investment after the Closing Date in any other Person, the amount of all such Investments shall not exceed $5.0 million in the aggregate;
(Jj) Cash and Cash Equivalents in a depository account in the name of the Agent and within the Agent's sole dominion and control (the "INVESTMENT ACCOUNT"), in which the Agent shall have at all times a perfected security interest for the benefit of the Secured Parties (as defined in the Security Agreement);; and
(K) Investments by the Borrowers in the amounts, subject to the conditions and of the types described on EXHIBIT G.
(Lk) Such other Investments as the Agent may approve in writing in its sole discretion.
Appears in 1 contract
Samples: Credit Agreement (Wellman Inc)
