Investments; Joint Ventures Holdings shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, make or own any Investment in any Person, including any Joint Venture, except:
(i) Holdings and its Subsidiaries may make and own Investments in Cash Equivalents;
(ii) Foreign Subsidiaries of Holdings may make and own Investments in Foreign Cash Equivalents;
(iii) Holdings may continue to own the Investments owned by it as of the Effective Date in Company, and Company and its Subsidiaries may continue to own the Investments owned by them as of the Effective Date in any Subsidiaries of Company and make additional Investments in such Subsidiaries that are Subsidiary Guarantors;
(iv) Holdings and its Subsidiaries may own Investments in their respective Subsidiaries to the extent that such Investments reflect an increase in the value of such Subsidiaries;
(v) Company and its Subsidiaries may make intercompany loans to the extent permitted under subsections 7.1(iv) and 7.1(v);
(vi) Company and its Subsidiaries may make Consolidated Capital Expenditures permitted by subsection 7.8;
(vii) Company and its Subsidiaries may continue to own the Investments owned by them and described in Schedule 7.3(vii) annexed hereto;
(viii) Company and its Subsidiaries may make loans and advances to employees, officers, executives or consultants to Company and its Subsidiaries in the ordinary course of business of Company and its Subsidiaries as presently conducted for the purpose of purchasing capital stock of Holdings so long as no cash is paid by Holdings or any of its Subsidiaries in connection with the acquisition of such capital stock;
(ix) Company and its Subsidiaries may acquire and hold receivables owing to it, if created or acquired in the ordinary course of business and payable or dischargeable in accordance with customary trade terms (including the dating of receivables) of Company or any such Subsidiary;
(x) Company and its Subsidiaries may acquire and own Investments (including debt obligations) received in connection with the bankruptcy or reorganization of suppliers and customers and in settlement of delinquent obligations of, and other disputes with, customers and suppliers arising in the ordinary course of business;
(xi) Company and its Subsidiaries may make and own Investments consisting of deposits made in the ordinary course of business consistent with past practices to secure the performance of leases;
(xii) Holdings may make equity contributions to the capital of Company;
(xiii) Company and its Domestic Subsidiaries may make and own Investments consisting of cash capital contributions (in addition to cash contributions made prior to the Effective Date and set forth on Schedule 7.3(xiii) annexed hereto) to Foreign Subsidiaries of Company, or the capitalization or forgiveness of any Indebtedness owed to them by a Foreign Subsidiary and outstanding under subsection 7.1(v); provided that the sum of (x) aggregate amount of such contributions, capitalization and forgiveness made after the Effective Date, plus (y) the aggregate outstanding principal amount of Indebtedness of the type permitted under subsection 7.1(v), shall not exceed the amounts set forth in subsection 7.1(v) at the times set forth therein;
(xiv) Company and its Subsidiaries may make and own Investments in Subsidiaries acquired pursuant to Permitted Acquisitions under subsection 7.7(xiv); provided, however, that (1) the sum of the aggregate fair market value of all Investments (determined at the time any Investment by Company and its Subsidiaries is made in any non-wholly owned Subsidiary) by Company and its Subsidiaries in all non-wholly owned Subsidiaries acquired pursuant to clause (A) of subsection 7.7(xiv)(b) and any amounts advanced as to such non-wholly owned Subsidiaries pursuant to subsection 7.1(xviii) shall not exceed 10% of Total Assets at the time of such Investment (with the fair market value of each such Investment being measured at the time made and without giving effect to subsequent changes in value) (it being understood that changes in value of all such outstanding Investments shall be given effect in calculating Total Assets at the time of the making of any new Investment proposed to be made pursuant to this subsection 7.3(xiv), but that changes in value of any Investment which occur subsequent to the making of such Investment cannot result in a breach of this covenant unless a further Investment is made which is purported to be made pursuant to this subsection 7.3(xiv) at a time when (A) the sum of (x) the fair market value of all outstanding Investments made pursuant to this subsection 7.3(xiv), with such fair market value measured at the time of making of each such outstanding Investment, plus (y) the fair market value, measured at such time, of such further Investment, exceeds (B) 10% of Total Assets, measured at such time and giving effect to all changes in value of all outstanding Investments); and (2) no amount shall be paid to any Persons other than Company and its Subsidiaries as a dividend or other distribution, direct or indirect, on account of the equity interests held by such Persons in any Subsidiary acquired pursuant to such Permitted Acquisitions unless Company and its Subsidiaries holding equity interests in such acquired Subsidiary simultaneously receive a ratable dividend or distribution (except that such non-wholly owned Subsidiaries may (I) repurchase, in an aggregate amount of up to $1,000,000 in any Fiscal Year (plus an amount equal to the lesser of (X) the amount of such repurchases permitted under this clause (I) to be made during one or more preceding Fiscal Years but not made during such preceding Fiscal Years and (Y) $3,000,000), shares of their own capital stock from officers and other employees following termination of employment of any such officer or employee by reason of death, disability, discharge, retirement or resignation, and (II) pay distributions to holders of equity interests in any such non-wholly owned Subsidiary which is a “pass-through” entity for income tax purposes, so long as such distributions are solely in respect of the income of such non-wholly owned Subsidiary which is allocable to, and taxable with respect to, such holders;
(xv) Company and its Subsidiaries may make and own Investments consisting of notes received in connection with any Asset Sale limited to 20% of the total sale price of the assets sold in such Asset Sale; provided that the aggregate principal amount of such notes at any time outstanding shall not exceed $5,000,000;
(xvi) Company and its Subsidiaries may make and own Investments in any Person which (a) (1) result in the creation of an account arising in the ordinary course of Company’s or such Subsidiary’s business or (2) result from the restructure, reorganization or similar composition of trade account obligations which arose in the ordinary course of business and which are owing to Company or such Subsidiary from financially distressed debtors, and (b) are, in each case, subject to the Lien in favor of Collateral Agent under the Collateral Documents;
(xvii) Holdings and its Subsidiaries may make and own Investments permitted under subsection 7.7(xi), 7.7(xii) and 7.7(xiii);
(xviii) Company and its Subsidiaries may make and own Investments in wholly owned Domestic Subsidiaries of Company consisting of intercompany Indebtedness of such Subsidiaries converted to equity Investments, provided that the underlying intercompany Indebtedness was permitted hereunder at the time of such conversion;
(xix) Company and its Subsidiaries may make and own Investments not otherwise permitted under this subsection 7.3 so long as immediately prior to the making of each such Investment the Excess Proceeds Amount exceeds the amount of such Investment being made; and
(xx) Company and its Subsidiaries may make and own any Investment having a fair market value, together with (y) the fair market value of all other Investments made pursuant to this subsection 7.3(xx) and (z) all other Investments made pursuant to subsection 7.11, not exceeding in the aggregate $20,000,000 at the time of such Investment (with the fair market value of each such Investment being measured at the time made and without giving effect to subsequent changes in value); provided, that Company and its Subsidiaries (1) shall be in pro forma compliance with the covenants set forth in subsection 7.6 and (2) concurrently with the making of any such Investment, shall pledge or cause to be pledged to the Collateral Agent as security for the Obligations (x) any capital stock or other equity interests acquired by Company or any of its Subsidiaries as a result of any such Investment, except (in the case of an Investment in a Joint Venture) to the extent such pledge is expressly prohibited under the terms of the documentation relating to such Investment, and (y) any intercompany indebtedness representing loans made by Company or any of its Subsidiaries in connection with any such Investment; provided, however, that nothing in this subsection 7.3(xx) shall be construed to require, in the case of an Investment in a Subsidiary, that the capital stock of such Subsidiary be pledged to a greater extent than is required under the Collateral Documents. For the avoidance of doubt, the amount of any Investment shall be the original cost of such Investment plus the cost of additions thereto, without any adjustment for increases or decreases in value, write-ups, write-downs or write-offs with respect to such Investment less, in the case of subsection 7.3(xx) only, Cash proceeds realized by Company or a Subsidiary pursuant to any sale or disposition of such Investment.
Not a Joint Venture Nothing in the Contract shall be construed as creating or constituting the relationship of a partnership, joint venture, (or other association of any kind or agent and principal relationship) between the parties thereto. Each party shall be deemed to be an independent contractor contracting for goods and services and acting toward the mutual benefits expected to be derived herefrom. Neither Contractor nor any of Contractor's agents, servants, employees, subcontractors or contractors shall become or be deemed to become agents, servants, or employees of the State. Contractor shall therefore be responsible for compliance with all laws, rules and regulations involving its employees and any subcontractors, including but not limited to employment of labor, hours of labor, health and safety, working conditions, workers' compensation insurance, and payment of wages. No party has the authority to enter into any contract or create an obligation or liability on behalf of, in the name of, or binding upon another party to the Contract.
