Recovery of Net Investment in Facilities Sample Clauses
Recovery of Net Investment in Facilities
Acquisitions and Investments Borrower will not, nor will it permit any Subsidiary of Borrower to, make or suffer to exist any Investments (including without limitation, loans and advances to, and other Investments in, Subsidiaries of Borrower), or commitments therefor, or become or remain a partner in any partnership or joint venture, or to make any Entity Acquisition of any Person, except: (i) Cash Equivalents; (ii) Investments in existing Subsidiaries of Borrower, Investments in Subsidiaries of Borrower formed for the purpose of developing or acquiring industrial properties, or Investments in existing or newly formed joint ventures and partnerships engaged solely in the business of purchasing, developing, owning, operating, leasing and managing industrial properties; (iii) transactions permitted pursuant to Section 6.12; (iv) Investments permitted pursuant to Section 6.23; and (v) Entity Acquisitions of Persons whose primary operations consist of the ownership, development, operation and management of industrial properties; provided that, after giving effect to such Entity Acquisitions and Investments, Borrower continues to comply with all its covenants herein. Entity Acquisitions permitted pursuant to this Section 6.15 shall be deemed to be “Permitted Acquisitions”.
Loans and Investments No Credit Party shall and no Credit Party shall suffer or permit any of its Subsidiaries to (i) purchase or acquire any Stock or Stock Equivalents, or any obligations or other securities of, or any interest in, any other Person, including the establishment or creation of a Subsidiary (which shall be permitted only to the extent an Investment under this Section 5.4 is permitted), or (ii) make any Acquisitions, or any other acquisition of all or substantially all of the assets of another Person, or of any business or division of any Person, including without limitation, by way of merger, consolidation or other combination or (iii) make or purchase any advance, loan, extension of credit or capital contribution to or any other investment in, any Person including the Borrower, any Affiliate of the Borrower or any Subsidiary of the Borrower (the items described in clauses (i), (ii) and (iii) are referred to as “Investments”), except for: (a) Investments in cash and Cash Equivalents; (b) extensions of credit and other Investments by (i) any Credit Party (other than Holdings) to any other Credit Party (other than Holdings), (ii) the Borrower or any Domestic Subsidiary of the Borrower to Foreign Subsidiaries of the Borrower not to exceed, when combined with dispositions permitted under Section 5.2(e)(i), $3,000,000 in the aggregate at any time outstanding for all such extensions of credit and other Investments and, to the extent applicable, dispositions; provided, that if the extensions of credit described in foregoing clauses (i) and (ii) are evidenced by notes, such notes shall be pledged to Agent, for the benefit of the Secured Parties, and have such terms as Agent may reasonably require and (iii) a Foreign Subsidiary of the Borrower to another Foreign Subsidiary of the Borrower (it being understood and agreed that this Section 5.4(b) does not permit any extensions of credit or Investments in joint ventures or similar arrangements); (c) loans and advances to current or former employees, officers, directors, consultants and advisors in the Ordinary Course of Business or in connection with relocations, indemnification, or reimbursement in respect of liabilities relating to them serving in any such capacity, including business travel and entertainment expenses, not to exceed $650,000 in the aggregate at any time outstanding; (d) Investments received as the non-cash portion of consideration received in connection with transactions permitted pursuant to Section 5.2(b); (e) Investments acquired in connection with the settlement of delinquent Accounts in the Ordinary Course of Business or in connection with the bankruptcy or reorganization of suppliers or customers; and (f) Investments consisting of loans made by the Borrower (or any parent company of the Borrower) to officers, directors and employees of a Credit Party or any Subsidiary of a Credit Party which are used by such Persons to purchase simultaneously Stock or Stock Equivalents of the Borrower (or any parent company of the Borrower); provided that the proceeds of any such loan made in reliance on this clause (f) shall be contributed to Borrower in connection with such purchase of Stock or Stock Equivalents; (g) Investments existing on the Restatement Effective Date and set forth on Schedule 5.4; (h) Investments comprised of Contingent Obligations permitted by Section 5.9; (i) Permitted Acquisitions; (j) (i) Investments to consummate the Restatement Effective Date Related Transactions on the Restatement Effective Date in accordance with the provisions of the Restatement Effective Date Related Agreements and (ii) Investments to consummate the Restatement Effective Date Related Transactions on the Restatement Effective Date in accordance with the provisions of the Restatement Effective Date Related Agreements; (k) to the extent constituting an Investment, Capital Expenditures permitted hereunder; (l) to the extent constituting an Investment, transactions permitted by Section 5.3; (m) to the extent constituting an Investment, Rate Contracts permitted by Section 5.9(b); (n) to the extent constituting an Investment, Restricted Payments permitted by Section 5.11(c);
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, 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) investment in Cash Equivalents; (b) investments existing or contemplated on the date hereof and listed on Schedule 8.8 hereto; (c) investments in derivatives and hxxxxx made in the ordinary course of the such Person’s business in connection with managing risk for which the Borrower, any Guarantor or any Subsidiary has actual exposure (and not for speculative purposes) including, without limitation, Hedging Agreements; (d) investments in Permitted Acquisitions; (e) investments by the Borrower in one or more Guarantors or by a Guarantor in the Borrower or one or more other Guarantors; (f) investments in Mortgage Receivables not to exceed $5,000,000 in the aggregate; (g) investments in marketable securities available for sale; or (h) any other investments otherwise approved by the Required Lenders. 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.
Replacement of Lost Investments In the event of a loss of Investments for which the Custodian is responsible under the terms of this Agreement, the Custodian shall replace such Investment, or in the event that such replacement cannot be effected, the Custodian shall pay to the Fund the fair market value of such Investment based on the last available price as of the close of business in the relevant market on the date that a claim was first made to the Custodian with respect to such loss, or, if less, such other amount as shall be agreed by the parties as the date for settlement.
Nature of Participation and Reimbursement Obligations Each Lender’s obligation in accordance with this Agreement to make the Revolving Advances or Participation Advances, as contemplated by Section 2.8(b), as a result of a drawing under a Letter of Credit, and the Obligations of the Borrowers to reimburse the Issuer upon a draw under a Letter of Credit, shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Section 2.8 (and Section 3.2) under all circumstances, including the following circumstances: (i) any set-off, counterclaim, recoupment, defense or other right which such Lender may have against the Issuer or any of its Affiliates, the Credit Parties or any other Person for any reason whatsoever, or which any Credit Party may have against the Issuer or any of its Affiliates, any Lender or any other Person for any reason whatsoever; (ii) the failure of any Credit Party or any other Person to comply, in connection with a Letter of Credit Borrowing, with the conditions set forth in Sections 2.1, 2.2 or 8.2 or as otherwise set forth in this Agreement for the making of a Revolving Advances, it being acknowledged that such conditions are not required for the making of a Letter of Credit Borrowing and the obligation of the Lenders to make Participation Advances under Section 2.8(b); (iii) any lack of validity or enforceability of any Letter of Credit; (iv) any claim of breach of warranty that might be made by any Credit Party or any Lender against any beneficiary of a Letter of Credit, or the existence of any claim, set-off, recoupment, counterclaim, cross-claim, defense or other right which any Credit Party or any Lender may have at any time against a beneficiary, successor beneficiary any transferee or assignee of any Letter of Credit or the proceeds thereof (or any Persons for whom any such transferee may be acting), the Issuer or its Affiliates or any Lender or any other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between any Credit Party or Subsidiaries of a Credit Party and the beneficiary for which any Letter of Credit was procured); (v) the lack of power or authority of any signer of (or any defect in or forgery of any signature or endorsement on) or the form of or lack of validity, sufficiency, accuracy, enforceability or genuineness of any draft, demand, instrument, certificate or other document presented under or in connection with any Letter of Credit, or any fraud or alleged fraud in connection with any Letter of Credit, or the transport of any property or provision of services relating to a Letter of Credit, in each case even if the Issuer or any of its Affiliates has been notified thereof; (vi) payment by the Issuer or any of its Affiliates under any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Letter of Credit; (vii) the solvency of, or any acts or omissions by, any beneficiary of any Letter of Credit, or any other Person having a role in any transaction or obligation relating to a Letter of Credit, or the existence, nature, quality, quantity, condition, value or other characteristic of any property or services relating to a Letter of Credit; (viii) any failure by the Issuer or any of its Affiliates to issue any Letter of Credit in the form requested by any Credit Party, unless the Issuer has received written notice from such Credit Party of such failure within three Business Days after the Issuer shall have furnished such Credit Party and the Agent a copy of such Letter of Credit and such error is material and no drawing has been made thereon prior to receipt of such notice; (ix) any Material Adverse Effect; (x) any breach of this Agreement or any Other Document by any party thereto; (xi) the occurrence or continuance of an Insolvency Event with respect to any Credit Party; (xii) the fact that an Event of Default or a Default shall have occurred and be continuing; (xiii) the fact that the Maturity Date shall have passed or this Agreement or the Commitments hereunder shall have been terminated; and (xiv) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing.
Investment Advisory Facilities The Sub-Adviser, at its expense, will furnish all necessary investment facilities, including salaries of personnel, required for it to execute its duties hereunder.
Loans, Advances and Investments Neither the Seller nor any Restricted Subsidiary shall make any loan (other than Mortgage Loans), advance, or capital contribution to, or investment in (including any investment in any Restricted Subsidiary, joint venture or partnership), or purchase or otherwise acquire any of the capital stock, securities, ownership interests, or evidences of indebtedness of, any Person (collectively, “Investment”), or otherwise acquire any interest in, or control of, another Person, except for the following: (a) Cash Equivalents; (b) Any acquisition of securities or evidences of indebtedness of others when acquired by the Seller in settlement of accounts receivable or other debts arising in the ordinary course of its business, so long as the aggregate amount of any such securities or evidences of indebtedness is not material to the business or condition (financial or otherwise) of the Seller; (c) Mortgage Notes acquired in the ordinary course of the Seller’s business; (d) Investment in any existing Affiliate or any Subsidiary (including Investments by the Seller in CH Funding, LLC, a Delaware limited liability company) or JV; provided that (i) at the time any such investment is made and immediately thereafter, the Seller and the Restricted Subsidiaries are in compliance with all covenants set forth in the Repurchase Documents and no Default or Event of Default shall have occurred and be continuing and (ii) the aggregate outstanding amount of all such Investments shall not exceed $10,000,000 at any time; (e) Loans to officers or employees in an aggregate amount not to exceed $300,000; and (f) Investments in companies in the business of originating and servicing mortgage loans so long as such Investment is a direct equity investment and so long as such Investment does not cause a breach of any other covenant (affirmative or negative) hereunder.
Acquisition Loans The proceeds of the Acquisition Loans may be used only for the following purposes: (i) for working capital and general corporate purposes, including, without limitation, the issuance of Letters of Credit and to pay outstanding Floor Plan Loans; and (ii) to make Permitted Acquisitions.
Title, Management and Disposition of REO Property In the event that title to any Mortgaged Property is acquired in foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale shall be taken, pursuant to a limited power of attorney in the form attached hereto as Exhibit H, in the name of the Trustee or its nominee (which in no event shall be the Special Servicer) in trust for the benefit of the Certificateholders, or in the event the Trustee is not authorized or permitted to hold title to real property in the state where the REO Property is located, or would be adversely affected under the “doing business” or tax laws of such state by so holding title, the deed or certificate of sale shall be taken in the name of such Person or Persons as shall be consistent with an Opinion of Counsel obtained by the Special Servicer (with a copy delivered to the Trustee) from any attorney duly licensed to practice law in the state where the REO Property is located. Any such Opinion of Counsel will be deemed a Servicing Advance, reimbursable to the Special Servicer in accordance with Section 3.04. The Person or Persons holding such title other than the Trustee shall acknowledge in writing that such title is being held as nominee for the Trustee. The Special Servicer shall manage, conserve, protect and operate each REO Property for the Trustee solely for the purpose of its prompt disposition and sale. The Special Servicer, either itself or through an agent selected by the Special Servicer, shall manage, conserve, protect and operate the REO Property in the same manner that it manages, conserves, protects and operates other foreclosed property for its own account, and in the same manner that similar property in the same locality as the REO Property is managed. The Special Servicer shall attempt to sell the same (and may temporarily rent the same for a period not greater than one year, except as otherwise provided below) on such terms and conditions as the Special Servicer deems to be in the best interest of the Trustee and the Certificateholders. In the event that the Trust Fund acquires any REO Property in connection with a default or imminent default on a Transferred Mortgage Loan, the Special Servicer shall dispose of such REO Property not later than the end of the third taxable year after the year of its acquisition by the Trust Fund unless the Special Servicer has applied for and received a grant of extension from the Internal Revenue Service (and provide a copy of the same to the Master Servicer and the Trustee) to the effect that, under the REMIC Provisions and any relevant proposed legislation and under applicable state law, the applicable Trust REMIC may hold REO Property for a longer period without adversely affecting the REMIC status of such REMIC or causing the imposition of a federal or state tax upon such REMIC and has notified the Master Servicer and the Trustee of such extension by providing a copy of the application and the grant of such extension to the Trustee and the Master Servicer. If the Special Servicer has received such an extension (and provided a copy of the same to the Master Servicer and the Trustee), then the Special Servicer shall continue to attempt to sell the REO Property for its fair market value for such period longer than three years as such extension permits (the “Extended Period”). If the Special Servicer has not received such an extension and the Special Servicer is unable to sell the REO Property within the period ending three months before the end of such third taxable year after its acquisition by the Trust Fund or if the Special Servicer has received such an extension, and the Special Servicer is unable to sell the REO Property within the period ending three months before the close of the Extended Period, the Special Servicer shall, before the end of the three-year period or the Extended Period, as applicable, (i) purchase such REO Property at a price equal to the REO Property’s fair market value or (ii) auction the REO Property to the highest bidder (which may be the Special Servicer) in an auction reasonably designed to produce a fair price prior to the expiration of the three-year period or the Extended Period, as the case may be. The Trustee shall sign any document reasonably requested by, and at the expense of, the Special Servicer, or take any other action reasonably requested by the Special Servicer which would enable the Special Servicer, on behalf of the Trust Fund, to request such grant of extension. In all cases, the disposition of REO Property shall be carried out by the Special Servicer at such price, and upon such terms and conditions, as the Servicer deems to be in the best interests of the Trust Fund. Notwithstanding any other provisions of this Agreement, no REO Property acquired by the Trust Fund shall be rented (or allowed to continue to be rented) or otherwise used by or on behalf of the Trust Fund in such a manner or pursuant to any terms that would: (i) cause such REO Property to fail to qualify as “foreclosure property” within the meaning of Section 860G(a)(8) of the Code; or (ii) subject any Trust REMIC to the imposition of any federal income taxes on the income earned from such REO Property, including any taxes imposed by reason of Sections 860F or 860G(c) of the Code, unless the Special Servicer has agreed to indemnify and hold harmless the Trust Fund with respect to the imposition of any such taxes. The Special Servicer shall also maintain on each REO Property fire and hazard insurance with extended coverage in amount which is at least equal to the maximum insurable value of the improvements which are a part of such property, liability insurance and, to the extent required and available under the Flood Disaster Protection Act of 1973, as amended, flood insurance in the amount required above. The proceeds of sale of the REO Property shall be promptly deposited in the Custodial Account. As soon as practical thereafter the expenses of such sale shall be paid and the Special Servicer shall reimburse itself for any related unreimbursed Servicing Advances, unpaid Servicing Fees, unreimbursed Monthly Advances made pursuant to this Section or Section 4.03 or the REO Disposition Fee. The Special Servicer shall make advances of all funds necessary for the proper operation, management and maintenance of the REO Property, including the cost of maintaining any hazard insurance pursuant to Section 3.10, such advances to be reimbursed from the disposition or liquidation proceeds of the REO Property. The Special Servicer shall make monthly distributions on each Remittance Date to the Master Servicer of the net cash flow from the REO Property (which shall equal the revenues from such REO Property net of the expenses described in this Section 3.17 and of any reserves reasonably required from time to time to be maintained to satisfy anticipated liabilities for such expenses).