Actions in Respect of Letters of Credit (a) If, at any time and from time to time, any Letter of Credit shall have been issued hereunder and the same shall expire on a date after the Revolving Credit Termination Date, then, on the Revolving Credit Termination Date, the Borrower or the applicable Qualified Borrower shall pay to the Administrative Agent, on behalf of the Lenders, in same day funds at the Administrative Agent’s office designated in such demand, for deposit in a special cash collateral account (the “Letter of Credit Collateral Account”) to be maintained in the name of the Administrative Agent (on behalf of the Lenders) and under its sole dominion and control at such place as shall be designated by the Administrative Agent, an amount equal to the amount of the Letter of Credit Obligations, in the applicable currency, under the Letters of Credit. Interest shall accrue on the Letter of Credit Collateral Account at a rate equal to the rate on overnight funds. The Borrower shall also make deposits into the Letter of Credit Collateral Account in accordance with Section 11.2 and Section 14.25(c).
(b) The Borrower or the applicable Qualified Borrower hereby pledges, assigns and grants to the Administrative Agent, as Administrative Agent for its benefit and the ratable benefit of the Lenders a lien on and a security interest in, the following collateral (the “Letter of Credit Collateral”):
(i) the Letter of Credit Collateral Account, all cash deposited therein and all certificates and instruments, if any, from time to time representing or evidencing the Letter of Credit Collateral Account;
(ii) all notes, certificates of deposit and other instruments from time to time hereafter delivered to or otherwise possessed by the Administrative Agent for or on behalf of the Borrower in substitution for or in respect of any or all of the then existing Letter of Credit Collateral;
(iii) all interest, dividends, cash, instruments and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the then existing Letter of Credit Collateral; and
(iv) to the extent not covered by the above clauses, all proceeds of any or all of the foregoing Letter of Credit Collateral.
(c) The lien and security interest granted hereby secures the payment of all obligations of the Borrower now or hereafter existing hereunder and under any other Loan Document.
(d) The Borrower and the applicable Qualified Borrower hereby authorizes the Administrative Agent for the ratable benefit of the Lenders to apply, from time to time after funds are deposited in the Letter of Credit Collateral Account and for so long as an Event of Default has occurred and is continuing, funds then held in the Letter of Credit Collateral Account to the payment of any amounts, in such order as the Administrative Agent may elect, as shall have become due and payable by the Borrower to the Lenders in respect of the Letters of Credit.
(e) Neither the Borrower nor the applicable Qualified Borrower nor any Person claiming or acting on behalf of or through the Borrower or the applicable Qualified Borrower shall have any right to withdraw any of the funds held in the Letter of Credit Collateral Account.
(f) The Borrower and the applicable Qualified Borrower each agrees that it will not (i) sell or otherwise dispose of any interest in the Letter of Credit Collateral or (ii) create or permit to exist any lien, security interest or other charge or encumbrance upon or with respect to any of the Letter of Credit Collateral, except for the security interest created by this Section 3.4.
(g) If any Event of Default shall have occurred and be continuing:
(i) The Administrative Agent may, in its sole discretion, without notice to the Borrower or the applicable Qualified Borrower except as required by law and at any time from time to time, charge, set off or otherwise apply all or any part of first, (x) amounts previously drawn on any Letter of Credit that have not been reimbursed by the Borrower and (y) any Letter of Credit Obligations described in clause (ii) of the definition thereof that are then due and payable and second, any other unpaid Obligations then due and payable against the Letter of Credit Collateral Account or any part thereof, in such order as the Administrative Agent shall elect. The rights of the Administrative Agent under this Section 3.4 are in addition to any rights and remedies which any Lender may have.
(ii) The Administrative Agent may also exercise, in its sole discretion, in respect of the Letter of Credit Collateral Account, in addition to the other rights and remedies provided herein or otherwise available to it, all the rights and remedies of a secured party upon default under the Uniform Commercial Code in effect in the State of New York at that time.
(iii) The Administrative Agent shall be deemed to have exercised reasonable care in the custody and preservation of the Letter of Credit Collateral if the Letter of Credit Collateral is accorded treatment substantially equal to that which the Administrative Agent accords its own property, it being understood that, assuming such treatment, the Administrative Agent shall not have any responsibility or liability with respect thereto.
(iv) At such time as all Events of Default have been cured or waived in writing, all fees and expenses, if any, owing to the Lenders paid in full, and all Letters of Credit returned to the Issuing Banks, all amounts remaining in the Letter of Credit Collateral Account shall be promptly returned to the Borrower or the applicable Qualified Borrower. Absent such cure or written waiver, any surplus of the funds held in the Letter of Credit Collateral Account and remaining after payment in full of all of the Obligations of the Borrower or the applicable Qualified Borrower hereunder and under any other Loan Document after the Revolving Credit Termination Date shall be paid promptly to the Borrower or the applicable Qualified Borrower or to whomsoever may be lawfully entitled to receive such surplus.
Additional Costs in Respect of Letters of Credit Without limiting the obligations of the Borrower under the preceding subsections of this Section (but without duplication), if as a result of any Regulatory Change or any risk-based capital guideline or other requirement heretofore or hereafter issued by any Governmental Authority there shall be imposed, modified or deemed applicable any Tax (other than Indemnified Taxes, Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and Connection Income Taxes), reserve, special deposit, capital adequacy or similar requirement against or with respect to or measured by reference to Letters of Credit and the result shall be to increase the cost to the Issuing Bank of issuing (or any Lender of purchasing participations in) or maintaining its obligation hereunder to issue (or purchase participations in) any Letter of Credit or reduce any amount receivable by the Issuing Bank or any Lender hereunder in respect of any Letter of Credit, then, upon demand by the Issuing Bank or such Lender, the Borrower shall pay immediately to the Issuing Bank or, in the case of such Lender, to the Administrative Agent for the account of such Lender, from time to time as specified by the Issuing Bank or such Lender, such additional amounts as shall be sufficient to compensate the Issuing Bank or such Lender for such increased costs or reductions in amount.
Contribution with Respect to Guaranty Obligations (a) To the extent that any Borrower shall make a payment under this Section 12 of all or any of the Obligations (other than Loans made to that Borrower for which it is primarily liable) (a “Guarantor Payment”) that, taking into account all other Guarantor Payments then previously or concurrently made by any other Borrower, exceeds the amount that such Borrower would otherwise have paid if each Borrower had paid the aggregate Obligations satisfied by such Guarantor Payment in the same proportion that such Borrower’s “Allocable Amount” (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each of the Borrowers as determined immediately prior to the making of such Guarantor Payment, then, following indefeasible payment in full in cash of the Obligations and termination of the Commitments, such Borrower shall be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Borrower for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment.
(b) As of any date of determination, the “Allocable Amount” of any Borrower shall be equal to the maximum amount of the claim that could then be recovered from such Borrower under this Section 12 without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law.
(c) This Section 12.7 is intended only to define the relative rights of Borrowers and nothing set forth in this Section 12.7 is intended to or shall impair the obligations of Borrowers, jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with the terms of this Agreement, including Section 12.1. Nothing contained in this Section 12.7 shall limit the liability of any Borrower to pay the Loans made directly or indirectly to that Borrower and accrued interest, Fees and expenses with respect thereto for which such Borrower shall be primarily liable.
(d) The parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of the Borrower to which such contribution and indemnification is owing.
(e) The rights of the indemnifying Borrowers against other Credit Parties under this Section 12.7 shall be exercisable upon the full and indefeasible payment of the Obligations and the termination of the Commitments.
Actions in Respect of the Letters of Credit upon Default If any Event of Default described in Section 6.01(f) with respect to the Borrower shall have occurred and be continuing or the Borrowings shall have otherwise been accelerated or the Commitments terminated pursuant to Section 6.01, then the Administrative Agent may, or shall at the request of the Required Lenders, make demand upon the Borrower to, and forthwith upon such demand (or, in the case of an Event of Default under Section 6.01(f) with respect to the Borrower, automatically without demand) the Borrower will, deposit in an account designated in such demand (the “LC Collateral Account”) with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Lenders and LC Issuing Banks, in same day funds, an amount equal to 103% of the aggregate undrawn stated amounts of all Letters of Credit that are outstanding on such date. If at any time the Administrative Agent determines that any funds held in the LC Collateral Account are subject to any right or claim of any Person other than the Administrative Agent, the Lenders and the LC Issuing Banks or that the total amount of such funds is less than 103% of the aggregate undrawn stated amounts of all Letters of Credit that are outstanding on such date, the Borrower will, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited and held in the LC Collateral Account, an amount equal to the excess of (i) 103% of such aggregate undrawn stated amounts of all Letters of Credit that are outstanding on such date over (ii) the total amount of funds, if any, then held in the LC Collateral Account that the Administrative Agent determines to be free and clear of any such right and claim. Upon the drawing of any Letter of Credit for which funds are on deposit in the LC Collateral Account, such funds shall be applied to reimburse the relevant LC Issuing Bank or Lender holding a participation in the reimbursement obligation of the Borrower to such LC Issuing Bank to the extent permitted by Applicable Law.
Payments Pursuant to Letters of Credit The Borrower agrees to reimburse immediately the Letter of Credit Issuer for any draw under any Letter of Credit and the Agent for the account of the Lenders upon any payment pursuant to any Credit Support, and to pay the Letter of Credit Issuer the amount of all other charges and fees payable to the Letter of Credit Issuer in connection with any Letter of Credit immediately when due, irrespective of any claim, setoff, defense or other right which the Borrower may have at any time against the Letter of Credit Issuer or any other Person. Each drawing under any Letter of Credit shall constitute a request by the Borrower to the Agent for a Borrowing of a Base Rate Revolving Loan in the amount of such drawing. The Funding Date with respect to such borrowing shall be the date of such drawing.
Investments, Loans, Advances, Guarantees and Acquisitions Borrower will not, and will not permit any of its Subsidiaries to, acquire or form any new Subsidiaries after the Closing Date, acquire, form or suffer to exist any new Affiliates after the Closing Date, purchase, hold or acquire (including pursuant to any merger, other than a merger permitted by Section 5.4) any Stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advances to, guarantee any obligations of, or make or permit to exist any investment or any other interest in, any other Person, or purchase or otherwise acquire (in one transaction or a series of transactions (including pursuant to any merger)) any assets of any other Person constituting a business unit, except:
(a) Permitted Investments;
(b) investments existing on the date as of the last financial statement furnished to the Bank as set forth on Annex 2;
(c) Investments consisting of extensions of credit in the nature of accounts receivable arising from the grant of trade credit in the ordinary course of business;
(d) loans and advances to officers, directors and employees of Borrower or any Subsidiary in the ordinary course of the business of the Borrower and its Subsidiaries as presently conducted in compliance with all applicable laws (including, to the extent applicable, the Sxxxxxxx-Xxxxx Act of 2002, as amended) in an aggregate principal amount not to exceed $5,000 at any time outstanding; and
(e) investments made by Borrower in the equity securities of any Domestic Subsidiary and made by any Domestic Subsidiary in the equity securities of any other Domestic Subsidiary provided that (i) any such equity securities owned by Borrower or any Domestic Subsidiary shall become Collateral pursuant to this Agreement.
Limitation on Guarantees of Indebtedness by Restricted Subsidiaries The Company shall not permit any of its Restricted Subsidiaries, other than a Guarantor or the Issuer, to guarantee the payment of any First Lien Obligations, including any Indebtedness (or any interest on such Indebtedness) under the Senior Credit Facilities, the NXP Notes and the Existing Secured Notes unless:
(1) such Restricted Subsidiary within 30 days executes and delivers a supplemental indenture to this Indenture, the form of which is attached as Exhibit D hereto, providing for a Guarantee by such Restricted Subsidiary, except that with respect to a guarantee of Indebtedness of the Issuer or any Guarantor, if such Indebtedness is by its express terms subordinated in right of payment to the Notes or such Guarantor’s Guarantee, any such guarantee by such Restricted Subsidiary with respect to such Indebtedness shall be subordinated in right of payment to such Guarantee substantially to the same extent as such Indebtedness is subordinated to the Notes;
(2) such Restricted Subsidiary waives and shall not in any manner whatsoever claim or take the benefit or advantage of, any rights of reimbursement, indemnity or subrogation or any other rights against any Guarantor or any other Restricted Subsidiary as a result of any payment by such Person under its Guarantee or otherwise; and
(3) such Restricted Subsidiary shall deliver to the Trustee an Opinion of Counsel to the effect that:
(A) such Guarantee has been duly executed and authorized; and
(B) such Guarantee constitutes a valid, binding and enforceable obligation of such Restricted Subsidiary, except insofar as enforcement thereof may be limited by bankruptcy, insolvency or similar laws (including, without limitation, all laws relating to fraudulent transfers) and except insofar as enforcement thereof is subject to general principles of equity.
Investments, Acquisitions, Loans and Advances The Borrower shall not, nor shall it permit any Subsidiary to (i) directly or indirectly, make, retain or have outstanding any investments (whether through the purchase of stock or obligations or otherwise) in any Person, real property or improvements on real property, or any loans, advances, lines of credit, mortgage loans or other financings (including pursuant to sale/leaseback transactions) to any other Person, or (ii) acquire any real property, improvements on real property or all or any substantial part of the assets or business of any other Person or division thereof; provided, however, that the foregoing shall not apply to nor operate to prevent, with respect to the Borrower or any Subsidiary, any of the following:
(a) investments in direct obligations of the United States of America or of any agency or instrumentality thereof whose obligations constitute full faith and credit obligations of the United States of America, provided that any such obligations shall mature within one (1) year of the date of issuance thereof;
(b) investments in commercial paper with a Rating of at least P-1 by Mxxxx’x and at least A-1 by S&P maturing within one (1) year of the date of issuance thereof;
(c) investments in certificates of deposit issued by any Lender or by any United States commercial bank having capital and surplus of not less than $100,000,000 which have a maturity of one (1) year or less;
(d) investments in repurchase obligations with a term of not more than seven (7) days for underlying securities of the types described in subsection (a) above entered into with any bank meeting the qualifications specified in subsection (c) above, provided all such agreements require physical delivery of the securities securing such repurchase agreement, except those delivered through the Federal Reserve Book Entry System;
(e) investments in money market funds that invest solely, and which are restricted by their respective charters to invest solely, in investments of the type described in the immediately preceding subsections (a), (b), (c), and (d) above;
(f) the Borrower’s investments from time to time in Stock and Stock Equivalents (including, for the avoidance of doubt, marketable securities) issued by any real estate company or real estate investment trust (“REIT Shares”); provided that at least 90% of such REIT Shares shall issued by real estate companies listed on the New York Stock Exchange, Inc., the NYSE AMEX or the NASDAQ Stock Market;
(g) the Borrower’s investments from time to time in its Subsidiaries, and investments made from time to time by a Subsidiary in one or more of its Subsidiaries;
(h) intercompany advances made from time to time among the Borrower and its Subsidiaries in the ordinary course of business to finance working capital needs;
(i) investments from time to time in individual Real Properties (including Eligible Properties) or in entities which own such individual Real Properties (including Eligible Properties), provided that such investment does not cause a breach of the financial covenants set forth in Section 8.20 hereof or clauses (k), (l) or (m) below;
(j) cash investments in joint ventures in an amount not to exceed in the aggregate at any one time outstanding 10% of the Total Asset Value at such time;
(k) investments in Assets Under Development in an amount not to exceed in the aggregate at any one time outstanding 10% of the Total Asset Value at such time;
(l) investments in Land Assets in an amount not to exceed in the aggregate at any one time outstanding 10% of the Total Asset Value at such time;
(m) investments in Ground Leases in an amount not to exceed in the aggregate at any one time outstanding 10% of the Total Asset Value at such time;
(n) investments in deposit account and securities accounts opened in the ordinary course of business and in compliance with the terms of this Agreement;
(o) investments pursuant to Hedging Agreements that are not otherwise prohibited by the terms of this Agreement;
(p) investments in manufactured homes for lease or resale; and
(q) purchase money loans made by UMH Sales and Finance Inc. (a Subsidiary), or any successor thereto, to purchasers of manufactured homes; and
(r) other investments in addition to those otherwise permitted by this Section in an amount not to exceed in the aggregate at any one time 5% of the Total Asset Value at such time. Investments of the type described in clauses (j), (k), (l), (m), and (r) immediately preceding shall, at no time, exceed in the aggregate at any one time, 20% of the Total Asset Value of the Borrower and its Subsidiaries at such time. In determining the amount of investments, acquisitions, loans, and advances permitted under this Section, investments and acquisitions shall always be taken at the book value (as defined in GAAP) thereof, and loans and advances shall be taken at the principal amount thereof then remaining unpaid.
Limitation on Investments, Loans and Advances Make any advance, loan, extension of credit or capital contribution to, or purchase any stock, bonds, notes, debentures or other securities of or any assets constituting a business unit of, or make any other investment in (such advances, loans, extensions of credit, capital contributions, purchases and investments being herein called "Investments"), any Person, except:
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons engaged in the telecommunications business or businesses related thereto, provided that (i) such Person, if it shall be a Subsidiary, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that, after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, as an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(d) any Investment by the Borrower or any Restricted Subsidiary (other than any Special Purpose Subsidiary) in Persons not engaged in the telecommunications business or businesses related thereto if, after giving effect thereto, the aggregate amount of such Investments then held by the Borrower and its Restricted Subsidiaries does not exceed (x) at any time prior to the date on which the Special Payment Condition shall have occurred, $50,000,000, or (y) thereafter, 5% of then Total Capitalization; provided that (i) such Person, or the Person which shall become the owner of any assets acquired in connection with such Investment, shall become a Restricted Subsidiary unless (A) such Person or assets shall be acquired with (I) proceeds of capital contributed to the Borrower expressly for such purpose and/or (II) funds of the Borrower in such amount that after giving effect thereto, the Special Payment Condition shall be satisfied, provided that the Borrower shall have made a Pro Rata Payment Offer in an amount equal to such Investment and (B) the Borrower designates such Person, by notice to the Administrative Agent, an Unrestricted Subsidiary and (ii) immediately prior and after giving effect to such Investment, the Borrower is in Pro Forma Compliance;
(e) any Investment arising from the acquisition by the Borrower and its Restricted Subsidiaries of any System or Systems in connection with any Asset Swap, provided that (i) to the extent that the Borrower and its Restricted Subsidiaries give consideration for the System or Systems acquired by them in connection with such Asset Swap that is in addition to the System or Systems transferred by them in exchange therefor, such Asset Swap shall be deemed to constitute an Investment and shall be permitted only if the provisions of subsection 6.6(e) and 6.8(c) shall be complied with in connection therewith and (ii) immediately prior and after giving effect to such Investment the Borrower is in Pro Forma Compliance;
(f) loans and advances to employees of the Borrower and its Restricted Subsidiaries in an aggregate principal amount outstanding not to exceed $10,000,000 at any one time outstanding;
(g) Investments by the Borrower in its Restricted Subsidiaries and Investments by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in the Borrower or by any Restricted Subsidiary (other than any Special Purpose Subsidiary) in any other Restricted Subsidiary; and
(h) promissory notes and other deferred payment obligations that constitute proceeds of Asset Sales that are permitted by subsection 6.6.
Litigation and Contingent Obligations There is no litigation, arbitration, governmental investigation, proceeding or inquiry pending or, to the knowledge of any of their officers, threatened against or affecting the Borrower or any of its Subsidiaries which could reasonably be expected to have a Material Adverse Effect or which seeks to prevent, enjoin or delay the making of any Loans. Other than any liability incident to any litigation, arbitration or proceeding which could not reasonably be expected to have a Material Adverse Effect, the Borrower has no material contingent obligations not provided for or disclosed in the financial statements referred to in Section 5.4.
