Loans and Investments The Borrower will not, and will not permit any of its Subsidiaries to, make any Investments except:
(a) the Borrower and its Domestic Subsidiaries may acquire and hold Cash and Cash Equivalents;
(b) the Borrower and its Subsidiaries may hold the Investments as set forth on Schedule 8.7(b) hereto;
(c) the Borrower and its Subsidiaries may make or maintain advances (i) for relocation and related expenses and other advances to their employees in the ordinary course of business and (ii) for any other advances to their employees in the ordinary course of business in an aggregate principal amount not exceeding $10,000,000 (or the Dollar Equivalent thereof) at any one time outstanding;
(d) the Borrower and its Subsidiaries may acquire and hold (i) Investments consisting of extensions of credit in the nature of accounts receivable arising from the granting of trade credit in the ordinary course of business, and (ii) Investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers and other Persons and in settlement of delinquent obligations of, and other disputes with, customers and suppliers and other Persons arising in the ordinary course of business;
(e) the Borrower and its Subsidiaries may make deposits in a customary fashion in the ordinary course of business;
(f) the Borrower and its Subsidiaries may acquire and hold debt securities as partial consideration for a sale of assets pursuant to Section 8.3 or 4.4(c) to the extent permitted by any such Section;
(1) the Borrower may make or maintain intercompany loans and advances to any of its Wholly-Owned Subsidiaries, (2) any Subsidiary of the Borrower may make or maintain intercompany loans and advances to the Borrower and (3) any Subsidiary of the Borrower may make or maintain intercompany loans and advances to any Wholly-Owned Subsidiary of the Borrower (including, without limitation, pursuant to Permitted Entrustment Loan Arrangements) (collectively, “Intercompany Loans”), provided, that each Intercompany Loan made by a Foreign Subsidiary or a non-Wholly-Owned Subsidiary that is a Domestic Subsidiary, on the one hand, to the Borrower or a Wholly-Owned Subsidiary that is a Domestic Subsidiary of the Borrower, on the other hand, shall contain the subordination provisions set forth on Exhibit 8.7(g);
(i) the Borrower and its Subsidiaries may make Investments after the Tenth Amendment Effective Date in the Capital Stock of Persons that are Foreign Subsidiaries and may capitalize or forgive any Indebtedness owed to them by a Foreign Subsidiary (treating such capitalization or forgiveness as an Investment for purposes of this subclause (i)); provided, that the aggregate outstanding amount of such Investments pursuant to this subclause (i) (excluding Investments consisting solely of the contribution of the Capital Stock of a Foreign Subsidiary to a Foreign Subsidiary organized in a jurisdiction acceptable to Administrative Agent and the Investment described on Schedule 8.7(h)) shall not exceed an aggregate outstanding amount equal to the sum of $300,000,000 (increasing to $400,000,000 on the Rockwood Acquisition Closing Date) plus the aggregate amount contributed to Foreign Subsidiaries for Acquisitions permitted pursuant to Section 8.7(m), (ii) the Borrower and its Domestic Subsidiaries may make Investments in the Capital Stock of a Person that is a Domestic Subsidiary; provided, that the requirements of Section 7.11 are satisfied and (iii) Foreign Subsidiaries of the Borrower may make Investments in the Capital Stock of other Foreign Subsidiaries of the Borrower and may capitalize or forgive any Indebtedness owed to them by a Foreign Subsidiary (treating such capitalization or forgiveness as an Investment for purposes of this clause (iii));
(i) Foreign Subsidiaries of the Borrower may invest in cash, Cash Equivalents and Foreign Cash Equivalents;
(j) so long as (1) no Unmatured Event of Default or Event of Default exists either before or after giving effect thereto and (2) the Borrower is in compliance with Section 9.1 both before and after giving effect thereto on a Pro Forma Basis (whether or not such Section 9.1 would otherwise be applicable), the Borrower and its Subsidiaries may (i) make any Investment in any Permitted Unconsolidated Venture or in any Unrestricted Subsidiary (provided, that the Borrower shall have complied with Section 7.11(e) in connection with such Investment) consisting of an amount not in excess of the Available Unrestricted Subsidiary Investment Basket; and (ii) solely to the extent such Investment is used by any of ▇▇ ▇▇ Australia Holdings Company LLC, Huntsman Australia Holdings Corp., HCPH Holdings Pty Limited, Huntsman Chemical Australia Unit Trust or their Subsidiaries, make Investments in such entities to permanently prepay Indebtedness in an aggregate amount not to exceed $50,000,000.
(k) the Borrower may make intercompany loans to Huntsman Corporation, the proceeds of which shall be utilized by Huntsman Corporation to pay legal, franchise tax, audit, and other expenses directly relating to the administration or legal existence of the Borrower; provided, that the aggregate outstanding principal amount of such intercompany loans shall not exceed $3,000,000 at any time outstanding (without giving effect to any write-downs or write-offs thereof) and which amount shall not include any intercompany loans or advances made or deemed to have been made for any reason in respect of accrued but unpaid interest on any intercompany loans previously made to Huntsman Corporation, including the capitalization thereof;
(l) the Borrower may make Investments in Rubicon and LPC, so long as: (i) the Administrative Agent possesses a valid, perfected Lien on the applicable Credit Party’s interests in such Joint Venture, (ii) such Joint Venture does not have any Indebtedness for borrowed money at any time on or after the date of such Investment other than to the partners in such Joint Venture and (iii) the documentation governing such Joint Venture does not contain a restriction on distributions or loan repayments as applicable, to the Borrower or to the applicable Subsidiary holding the interest in such Joint Venture;
(m) the Borrower or any of its Subsidiaries may purchase all or a significant part of the assets of a business conducted by another Person, make any Investment in any Person which, after the Third Amendment Effective Date as a result of such Investment becomes a Wholly-Owned Subsidiary of the Borrower which is not an Unrestricted Subsidiary or, to the extent permitted under Section 8.3, enter into any merger, consolidation or amalgamation with any other Person (any such purchase, Investment or merger, an “Acquisition”); provided, that the consummation of the Rockwood Acquisition shall be subject to the conditions set forth in Section 5.5;
(n) the Borrower or any of its Subsidiaries may make Investments in the Receivables Subsidiary and any Participating Subsidiaries prior to the occurrence and continuance of an Event of Default under Section 10.1(n) which in the judgment of the Borrower are reasonably necessary in connection with any Permitted Accounts Receivables Securitization;
(o) in addition to Investments permitted pursuant to clauses (a) through (n) above, the Borrower or any of its Subsidiaries may make other Investments (A) in an outstanding amount not to exceed $50,000,000 in the aggregate or (B) with Available Equity Proceeds; provided, that in each case the Borrower shall have complied to the extent applicable with Section 7.11 in connection with such Investment; and provided further, that the Borrower may not make or own any investment in margin stock;
(p) the Borrower or any of its Subsidiaries may make Unrestricted Investments constituting Restricted Payments that are permitted by Section 8.4(b); provided, that, the Borrower shall have complied to the extent applicable with Section 7.11 in connection with such Unrestricted Investments; and provided further, that the Borrower may not make or own any investment in margin stock; and
(q) the Borrower or any of its Subsidiaries may make loans and advances to their respective customers in an aggregate amount not to exceed at any time $10,000,000.
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, Advances and Investments No Loan Party may (i) make any loan, advance, reimbursement of expenses, extension of credit, or capital contribution to, (ii) make any investment in, or purchase or commit to purchase any stock or other securities of or interests in, or (iii) enter into any joint venture, partnership, or other similar arrangement with, any Person, other than
(a) marketable obligations issued or unconditionally guaranteed by the United States government or issued by any of its agencies and backed by the full faith and credit of the United States of America (and investments in mutual funds investing primarily in those obligations);
(b) marketable obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof and rated “Aa2” or better by ▇▇▇▇▇’▇ or “AA” by S&P (and investments in mutual funds investing primarily in those obligations);
(c) certificates of deposit or banker’s acceptances that are fully insured by the Federal Deposit Insurance Corporation or are issued by commercial banks having combined capital, surplus, and undivided profits of not less than $250,000,000 (as shown on its most recently published statement of condition (and investments in mutual funds investing primarily in those certificates of deposit or banker’s acceptances));
(d) commercial paper and similar obligations rated “P-2” or better by ▇▇▇▇▇’▇, or “A-2” or better by S&P (and investments in mutual funds investing primarily in those obligations);
(e) checking and demand deposit accounts maintained in the ordinary course of business (subject to the delivery deadlines set forth in Section 6.1(d) and Section 8.16, provided an executed Deposit Account Control Agreement has been delivered to Lenders in Proper Form);
(f) expense accounts or loans or advances to its directors, managers, officers or employees for expenses incurred in the ordinary course of business and solely relating to such Persons’ travels and other activities undertaken on behalf of the Loan Parties and their businesses, which may not, in the aggregate, at any time exceed $25,000;
(g) investments in securities purchased by any Loan Party under repurchase obligations pursuant to which arrangements are made with selling financial institutions (being a financial institution having unimpaired capital and surplus of not less than $500,000,000 and with a rating of “A-1” by S&P or “P-1” by ▇▇▇▇▇’▇) for such financial institutions to repurchase such securities within thirty (30) days from the date of purchase by such Loan Party, and other similar short term investments made in connection with the Loan Party’s cash management practices;
(h) Permitted Acquisitions;
(i) non-cash proceeds from dispositions permitted under Section 9.9;
(j) investments by any Borrower in any other Borrower or the Company;
(k) investments by any Guarantor in any Loan Party (other than investments by the Company in Holdings);
(l) cash and Cash Equivalents;
(m) prepaid expenses incurred in the ordinary course of business;
(n) security deposits in respect of real property leases;
(o) accounts receivable or notes receivable created in the ordinary course of business;
(p) to the extent constituting investments, transactions expressly permitted under Sections 9.1, 9.6, 9.10 and 9.15;
(q) investments to the extent that payment for such investments is made solely by the issuance of Equity Securities (other than Disqualified Stock) of Holdings to the seller of such investments, provided, that such investments would not result in a Change of Control;
(r) investments of a Person that is acquired and becomes a Subsidiary of a Loan Party or of a company merged or amalgamated or consolidated into any Loan Party, in each case after the Closing Date and pursuant to a Permitted Acquisition, to the extent that such investments were not made in contemplation of or in connection with such Permitted Acquisition by a Loan Party and were in existence on the date of such Permitted Acquisition;
(s) the forgiveness or conversion to equity (other than Disqualified Stock) of any Permitted Debt owed to a Loan Party;
(t) guarantees by any Loan Party of leases entered into by a Loan Party in the ordinary course of business; and
(u) the loans, advances and/or investments set forth on Schedule 9.4.
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 h▇▇▇▇▇ 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.
Sharing Information With Affiliates of the Lenders Each Loan Party acknowledges that from time to time financial advisory, investment banking and other services may be offered or provided to the Borrower or one or more of its Affiliates (in connection with this Agreement or otherwise) by any Lender or by one or more Subsidiaries or Affiliates of such Lender and each of the Loan Parties hereby authorizes each Lender to share any information delivered to such Lender by such Loan Party and its Subsidiaries pursuant to this Agreement to any such Subsidiary or Affiliate subject to the provisions of Section 11.9.1 [General].