Changes in Business; etc. (a) The U.S. Borrower and its Subsidiaries will not engage in any business other than a Permitted Business. (b) The Bermuda Partnership will not engage in any business and will not own any significant assets or any cash or Cash Equivalents (other than its ownership of Equity Interests of Qualified Non-U.S. Obligors) or have any material liabilities (other than those liabilities for which it is responsible under the Credit Documents to which it is a party), provided that the Bermuda Partnership may (I) provide treasury, accounting, logistic and other administrative support services to its Affiliates on an arms’ length basis and hold and retain cash earned in connection with the provision of such services, (II) receive and hold additional cash and Cash Equivalents from its Subsidiaries and/or its Affiliates, so long as the same are promptly loaned, distributed and/or contributed to its Subsidiaries and/or Affiliates in a transaction otherwise permitted by this Agreement and (III) engage in those activities that (i) are incidental to (x) the maintenance of its Company existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, the Credit Documents to which it is a party and (ii) are otherwise expressly permitted by this Agreement and the other Credit Documents. (c) Notwithstanding anything to the contrary contained above or elsewhere in this Agreement: (i) the Bermuda Partnership Partners shall not collectively own or hold (x) Property (exclusive of Property leased or operated but not owned) with a Fair Market Value in excess of $30,000,000 at any time or (y) cash or Cash Equivalents in an aggregate in excess of $10,000,000; provided that (v) all assets owned by the Bermuda Partnership Partners on the Amendment No. 4 Effective Date (which assets shall have a net book value on the Amendment No. 4 Effective Date not to exceed $25,000,000) shall be excluded for purposes of such determination, (w) any cash and Cash Equivalents loaned and/or contributed to such Persons by Affiliates of such Persons shall be excluded for purposes of such determination, so long as the same are promptly loaned and/or distributed to other Affiliates of such Persons in a transaction otherwise permitted by this Agreement, (x) any inventory owned by the Bermuda Partnership Partners shall be excluded for purposes of such determination, (y) any Equity Interests in the Bermuda Partnership which are held by the Bermuda Partnership Partners shall be excluded for purposes of such determination and (z) any intercompany receivable owed to a Bermuda Partnership Partner by Xxxx Settlement Company shall be excluded for purposes of such determination so long as such intercompany receivable is at all times subject to the subordination provisions contained in the Intercompany Subordination Agreement; (ii) no Bermuda Partnership Partner shall merge, consolidate with or be liquidated or dissolved into any other Person, provided, however, that any Bermuda Partnership Partner may merge or consolidate with or into any other Wholly-Owned Domestic Subsidiary of the U.S. Borrower formed for the sole purpose of reincorporating such Bermuda Partnership Partner in a different jurisdiction (and, thereafter, the surviving entity of such merger or consolidation shall constitute a “Bermuda Partnership Partner” for all purposes of this Agreement and the other Credit Documents (subject to and bound by all terms and covenants herein and therein applicable to a “Bermuda Partnership Partner”)); (iii) no later than one Business Day following the date upon which any Bermuda Partnership Partner receives or generates an Account (as defined in the U.S. Security Agreement), such Account shall be sold on a non-recourse basis to Xxxx Settlement Company (at a discount of 2%) in exchange for a note payable (which shall at all times be subject to the subordination provisions contained in the Intercompany Subordination Agreement) and/or the assumption of a payable or payables owing by such Bermuda Partnership Partner to its relevant Subsidiary which sells fruit, inventory or other Property, or provides shipping services, to such Bermuda Partnership Partner (which assumed liabilities shall also be subject to the subordination provisions contained in the Intercompany Subordination Agreement); and (iv) upon the occurrence and during the continuance of any Specified Default or any Event of Default under Section 10.01 or 10.05, unless otherwise directed by the Administrative Agent or the Required Lenders, (x) neither the U.S. Borrower nor any of its Subsidiaries shall sell fruit, inventory or other Property to, or contract to perform shipping services for, any Bermuda Partnership Partner, (y) the U.S. Borrower and its Subsidiaries shall sell to Xxxx Settlement Company fruit, inventory and other Property formerly sold to, and shall contract with Xxxx Settlement Company to sell shipping services formerly contracted with, any Bermuda Partnership Partner and (z) no Bermuda Partnership Partner shall be permitted to receive any Dividends or the proceeds of any intercompany loans or advances from any of its Affiliates.
Appears in 3 contracts
Samples: Credit Agreement (Dole Food Co Inc), Credit Agreement (Dole Food Co Inc), Credit Agreement (Dole Food Co Inc)
Changes in Business; etc. (a) The U.S. Borrower and its Subsidiaries will not engage in any business other than a Permitted Business.
(b) The Bermuda Partnership will not engage in any business and will not own any significant assets or any cash or Cash Equivalents (other than its ownership of Equity Interests of Qualified Non-U.S. ObligorsForeign Subsidiaries) or have any material liabilities (other than those liabilities for which it is responsible under the Credit Documents to which it is a party), provided that the Bermuda Partnership may (I) provide treasury, accounting, logistic and other administrative support services to its Affiliates on an arms’ length basis and hold and retain cash earned in connection with the provision of such services, (II) receive and hold additional cash and Cash Equivalents from its Subsidiaries and/or its Affiliates, so long as the same are promptly (and in any event within one Business Day of receipt thereof) loaned, distributed and/or contributed contributed, subject to Section 10.01(c), to its Subsidiaries and/or Affiliates in a transaction otherwise permitted by accordance with the requirements of Section 10.05 of this Agreement Agreement, and (III) engage in those activities that (i) are incidental to (x) the maintenance of its Company existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, the Credit Documents to which it is a party and (ii) are otherwise expressly permitted by this Agreement (other than pursuant to preceding Section 10.01(a)) and the other Credit Documents.
(c) Notwithstanding anything to the contrary contained above or elsewhere in this Agreement:Agreement (including, without limitation, Sections 10.02 and 10.05):
(i) the Bermuda Partnership Partners shall not collectively own or hold (x) Property (exclusive of Property leased or operated but not owned) with a Fair Market Value in excess of $30,000,000 at any time or (y) cash or Cash Equivalents in an aggregate in excess of $10,000,000; provided that (v) all assets owned by the Bermuda Partnership Partners on the Amendment No. 4 Effective Date (which assets shall have a net book value on the Amendment No. 4 Effective Date not to exceed $25,000,000) shall be excluded for purposes of such determination, (w) any cash and Cash Equivalents loaned and/or contributed to such Persons by Affiliates of such Persons shall be excluded for purposes of such determination, so long as the same are promptly (and in any event within one Business Day) loaned and/or distributed to other Affiliates of such Persons (other than another Bermuda Partnership Partner) in a transaction otherwise permitted by accordance with the requirements of this Agreement, (x) any inventory owned by the Bermuda Partnership Partners shall be excluded for purposes of such determination, (y) any Equity Interests in the Bermuda Partnership which are held by the Bermuda Partnership Partners shall be excluded for purposes of such determination and (z) any intercompany receivable owed to a Bermuda Partnership Partner by Xxxx Settlement Company shall be excluded for purposes of such determination determination, so long as (I) both Xxxx Settlement Company (as obligor) and the respective Bermuda Partnership Partner (as obligee) are parties to the Intercompany Subordination Agreement and (II) such intercompany receivable is at all times subject to the subordination provisions contained in the Intercompany Subordination Agreement;
(ii) no Bermuda Partnership Partner shall merge, consolidate with or be liquidated or dissolved into any other Person, provided, however, that any Bermuda Partnership Partner may merge or consolidate with or into any other Wholly-Owned Domestic Subsidiary of the U.S. Borrower formed for the sole purpose of reincorporating such Bermuda Partnership Partner in a different jurisdiction (andjurisdiction, thereafter, so long as the surviving entity of such merger or consolidation shall constitute remains a “Bermuda Partnership Partner” for all purposes of this Agreement and the other Credit Documents (subject to and bound by all terms and covenants herein and therein applicable to a “Bermuda Partnership Partner”));
(iii) no Bermuda Partnership Partner shall engage in any business other than a business which is the same or reasonably related to the business in which such Bermuda Partnership Partner is engaged on the Initial Borrowing Date;
(iv) no later than one Business Day following the date upon which any Bermuda Partnership Partner receives or generates an Account (as defined in the U.S. Security Agreement), such Account shall be sold on a non-recourse basis to Xxxx Settlement Company (at a discount of 2%) in exchange for a note payable (which shall at all times be subject to the subordination provisions contained in the Intercompany Subordination Agreement) and/or the assumption of a payable or payables owing by such Bermuda Partnership Partner to its relevant Subsidiary which sells fruit, inventory or other Property, or provides shipping services, to such Bermuda Partnership Partner (which assumed liabilities shall also be subject to the subordination provisions contained in the Intercompany Subordination Agreement); and
(ivv) upon the occurrence and during the continuance of any Specified Default or any Event of Default under Section 10.01 11.01 or 10.0511.05, unless otherwise directed by the Administrative Agent or the Required Lenders, (x) neither the U.S. Borrower nor any of its Subsidiaries shall sell fruit, inventory or other Property to, or contract to perform shipping services for, any Bermuda Partnership Partner, (y) the U.S. Borrower and its Subsidiaries shall sell to Xxxx Settlement Company fruit, inventory and other Property formerly sold to, and shall contract with Xxxx Settlement Company to sell shipping services formerly contracted with, any Bermuda Partnership Partner and (z) no Bermuda Partnership Partner shall be permitted to receive any Dividends or the proceeds of any intercompany loans or advances from any of its Affiliates.
(d) Notwithstanding the foregoing, the Excluded Domestic Subsidiary will not engage in any business and will not own any assets or have any liabilities; provided that the Excluded Domestic Subsidiary may engage in those activities that are incidental to (x) the maintenance or termination of its corporate existence in compliance with applicable law, and (y) legal, tax and accounting matters in connection with any of the foregoing activities.
(e) Notwithstanding the foregoing, no Excluded Bermuda Insurance Company will engage in any business (other than the insurance related business conducted by it on the Effective Date (including, without limitation, its business as a captive insurer for the Borrower and its Affiliates with respect to property, casualty and liability insurance (including workers compensation insurance))) and will not own any Equity Interests or any other significant assets (other than assets used in the conduct of its business as described above) or have any liabilities (other than those liabilities under the Documents to which it is a party and those liabilities incurred in the ordinary course of its business as described above); provided that an Excluded Bermuda Insurance Company may engage in those activities that are incidental to (x) the maintenance of its Company existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, this Agreement and the other Documents to which it is a party.
(f) Notwithstanding anything to the contrary contained above in this Section or elsewhere in this Agreement, at no time shall the Borrower or any Subsidiary of the Borrower be an obligor or an obligee with respect to any Intercompany Debt, unless each obligor (including each Person which is a guarantor thereof) and each obligee with respect thereto are party to the Intercompany Subordination Agreement; provided however, that the provisions hereof shall not apply to those Non-Wholly Owned Subsidiaries listed on Schedule XIV.
(g) Notwithstanding the foregoing, no Excluded Foreign Subsidiary will engage in any business or own any assets (other than (x) Equity Interests of another Excluded Foreign Subsidiary and (y) immaterial assets with a Fair Market Value not exceeding $25,000) or have any liabilities; provided that any Excluded Foreign Subsidiary may engage in those activities that are incidental to (x) the maintenance or termination of its corporate existence in compliance with applicable law and (y) legal, tax and accounting matters in connection with any of the foregoing activities.
Appears in 3 contracts
Samples: Credit Agreement (Dole Food Co Inc), Credit Agreement (Dole Food Co Inc), Credit Agreement (Dole Food Co Inc)
Changes in Business; etc. (a) The U.S. Borrower Holdings and its Subsidiaries will not engage in any business other than a Permitted Business.
(b) The Bermuda Partnership Notwithstanding the foregoing, Holdings will not itself (I) engage in a Permitted Business, (II) own any significant assets (other than (w) the Equity Interests of the Borrower, (x) any Intercompany Note evidencing an Intercompany Loan permitted to be made by it pursuant to Section 9.05(vi), (y) cash and/or Cash Equivalents to be on-loaned, dividended, contributed and/or otherwise promptly applied for purposes not otherwise prohibited by this Agreement and (z) other assets used or held in connection with the performance of activities permitted to be conducted by Holdings) or (III) have any liabilities (other than those liabilities for which it is responsible under this Agreement, the Documents to which it is a party, any Intercompany Loan permitted to be incurred by it pursuant to Section 9.05(vi), any Shareholder Subordinated Note and any other Indebtedness permitted to be incurred by Holdings pursuant to Section 9.04); provided however, the conduct of business restriction contained in clause (I) above shall not prohibit (or be construed to prohibit) Holdings from conducting administrative and other ordinary course “holding company” activities necessary or desirable in connection with the operation of the Permitted Business through Subsidiaries of Holdings (including, without limitation, intercompany management functions and the provision of umbrella insurance policies).
(c) Notwithstanding anything to the contrary contained in this Agreement, the Receivables Entity will not engage in any business other than purchasing Accounts Receivable Facility Assets from the Receivables Sellers and the related transactions contemplated by the terms of the Accounts Receivable Facility Documents; provided that the Receivables Entity may engage in those activities that are incidental to (x) the maintenance of its corporate existence in compliance with applicable law and (y) tax, legal and accounting matters in connection with the foregoing permitted activities.
(d) Notwithstanding anything to the contrary contained in this Agreement, Cayman Partnership Shareholder #1 will not engage in any business or own any significant assets or any cash or Cash Equivalents (other than (x) its ownership of the Equity Interests of Qualified Non-U.S. ObligorsCayman Partnership Shareholder #2, Cayman Partnership Shareholder #3 and the Cayman Partnership and (y) any cash, Cash Equivalents and/or intercompany receivables permitted to be held in accordance with the proviso to Section 7.25(b) or have any material liabilities (other than those liabilities for which it is responsible under the Credit Documents to which it is a party), provided that the Bermuda Cayman Partnership Shareholder #1 may (I) provide treasury, accounting, logistic and other administrative support services to its Affiliates on an arms’ length basis and hold and retain cash earned in connection with the provision of such services, (II) receive and hold additional cash and Cash Equivalents from its Subsidiaries and/or its Affiliates, so long as the same are promptly loaned, distributed and/or contributed to its Subsidiaries and/or Affiliates in a transaction otherwise permitted by this Agreement and (III) engage in those activities that (i) are incidental to (x) the maintenance of its Company corporate existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, the Credit Documents to which it is a party and (ii) are otherwise expressly permitted by this Agreement (other than pursuant to preceding Section 9.01(a)) and the other Credit Documents.
(ce) Notwithstanding anything to the contrary contained above or elsewhere in this Agreement:
, Cayman Partnership Shareholder #2 will not engage in any business or own any significant assets (other than (x) its ownership of the Equity Interests of the Cayman Partnership and (y) any cash, Cash Equivalents and/or intercompany receivables permitted to be held in accordance with the proviso to Section 7.25(c)) or have any material liabilities (other than those liabilities for which it is responsible under the Credit Documents to which it is a party), provided that Cayman Partnership Shareholder #2 may engage in those activities that (i) the Bermuda Partnership Partners shall not collectively own or hold are incidental to (x) Property (exclusive the maintenance of Property leased or operated but not owned) its corporate existence in compliance with a Fair Market Value in excess of $30,000,000 at any time or (y) cash or Cash Equivalents in an aggregate in excess of $10,000,000; provided that (v) all assets owned by the Bermuda Partnership Partners on the Amendment No. 4 Effective Date (which assets shall have a net book value on the Amendment No. 4 Effective Date not to exceed $25,000,000) shall be excluded for purposes of such determination, (w) any cash and Cash Equivalents loaned and/or contributed to such Persons by Affiliates of such Persons shall be excluded for purposes of such determination, so long as the same are promptly loaned and/or distributed to other Affiliates of such Persons in a transaction otherwise permitted by this Agreement, (x) any inventory owned by the Bermuda Partnership Partners shall be excluded for purposes of such determinationapplicable law, (y) legal, tax and accounting matters in connection with any Equity Interests in of the Bermuda Partnership which are held by the Bermuda Partnership Partners shall be excluded for purposes of such determination foregoing activities and (z) any intercompany receivable owed the entering into, and performing its obligations under, the Credit Documents to which it is a Bermuda Partnership Partner by Xxxx Settlement Company shall be excluded for purposes of such determination so long as such intercompany receivable is at all times subject to the subordination provisions contained in the Intercompany Subordination Agreement;
party and (ii) no Bermuda Partnership Partner shall merge, consolidate with or be liquidated or dissolved into any other Person, provided, however, that any Bermuda Partnership Partner may merge or consolidate with or into any other Wholly-Owned Domestic Subsidiary of the U.S. Borrower formed for the sole purpose of reincorporating such Bermuda Partnership Partner in a different jurisdiction (and, thereafter, the surviving entity of such merger or consolidation shall constitute a “Bermuda Partnership Partner” for all purposes of are otherwise expressly permitted by this Agreement (other than pursuant to preceding Section 9.01(a)) and the other Credit Documents (subject to and bound by all terms and covenants herein and therein applicable to a “Bermuda Partnership Partner”));Documents.
(iiif) no later than one Business Day following the date upon which any Bermuda Partnership Partner receives or generates an Account (as defined in the U.S. Security Agreement), such Account shall be sold on a non-recourse basis to Xxxx Settlement Company (at a discount of 2%) in exchange for a note payable (which shall at all times be subject Notwithstanding anything to the subordination provisions contrary contained in the Intercompany Subordination this Agreement) and/or the assumption of a payable , Cayman Partnership Shareholder #3 will not engage in any business or payables owing by such Bermuda Partnership Partner to its relevant Subsidiary which sells fruit, inventory or own any significant assets (other Property, or provides shipping services, to such Bermuda Partnership Partner (which assumed liabilities shall also be subject to the subordination provisions contained in the Intercompany Subordination Agreement); and
(iv) upon the occurrence and during the continuance of any Specified Default or any Event of Default under Section 10.01 or 10.05, unless otherwise directed by the Administrative Agent or the Required Lenders, than (x) neither its ownership of the U.S. Borrower nor Equity Interests of the Cayman Partnership and (y) any cash, Cash Equivalents and/or intercompany receivables permitted to be held in accordance with the proviso to Section 7.25(d)) or have any material liabilities (other than those liabilities for which it is responsible under the Credit Documents to which it is a party), provided that Cayman Partnership Shareholder #3 may engage in those activities that (i) are incidental to (x) the maintenance of its Subsidiaries shall sell fruit, inventory or other Property to, or contract to perform shipping services for, any Bermuda Partnership Partnercorporate existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the U.S. Borrower and its Subsidiaries shall sell to Xxxx Settlement Company fruit, inventory and other Property formerly sold to, and shall contract with Xxxx Settlement Company to sell shipping services formerly contracted with, any Bermuda Partnership Partner foregoing activities and (z) no Bermuda Partnership Partner shall be the entering into, and performing its obligations under, the Credit Documents to which it is a party and (ii) are otherwise expressly permitted by this Agreement (other than pursuant to receive any Dividends or preceding Section 9.01(a)) and the proceeds of any intercompany loans or advances from any of its Affiliatesother Credit Documents.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (EnerSys), Credit Agreement (EnerSys)
Changes in Business; etc. (a) The U.S. Borrower and its Subsidiaries will not engage in any business other than a Permitted Business.
(b) The Bermuda Partnership will not engage in any business and will not own any significant assets or any cash or Cash Equivalents (other than its ownership of Equity Interests of Qualified Non-U.S. Obligors) or have any material liabilities (other than those liabilities for which it is responsible under the Credit Documents to which it is a party), provided that the Bermuda Partnership may (I) provide treasury, accounting, logistic and other administrative support services to its Affiliates on an arms’ length basis and hold and retain cash earned in connection con- nection with the provision of such services, (II) receive and hold additional cash and Cash Equivalents from its Subsidiaries and/or its Affiliates, so long as the same are promptly (and in any event within one Business Day of receipt thereof) loaned, distributed and/or contributed contributed, subject to Section 9.01(c), to its Subsidiaries and/or Affiliates in a transaction otherwise permitted by accordance with the requirements of Section 9.05 of this Agreement and (III) engage in those activities that (i) are incidental to (x) the maintenance of its Company existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, the Credit Documents to which it is a party and (ii) are otherwise expressly permitted by this Agreement (other than pursuant to preceding Section 9.01(a)) and the other Credit Documents.
(c) Notwithstanding anything to the contrary contained above or elsewhere in this Agreement:Agreement (including, without limitation, Sections 9.02 and 9.05):
(i) the Bermuda Partnership Partners shall not collectively own or hold (x) Property (exclusive of Property leased or operated but not owned) with a Fair Market Value in excess of $30,000,000 at any time or (y) cash or Cash Equivalents in an aggregate in excess of $10,000,000; provided that (v) all assets owned by the Bermuda Partnership Partners on the Amendment No. 4 Restatement Effective Date (which assets shall have a net book value on the Amendment No. 4 Restatement Effective Date not to exceed $25,000,000) shall be excluded for purposes of such determination, (w) any cash and Cash Equivalents loaned and/or contributed to such Persons by Affiliates of such Persons shall be excluded for purposes of such determination, so long as the same are promptly (and in any event within one Business Day) loaned and/or distributed to other Affiliates of such Persons (other than another Bermuda Partnership Partner) in a transaction otherwise permitted by accordance with the requirements of this Agreement, (x) any inventory owned by the Bermuda Partnership Partners shall be excluded for purposes of such determination, (y) any Equity Interests in the Bermuda Partnership which are held by the Bermuda Partnership Partners shall be excluded for purposes of such determination and (z) any intercompany receivable owed to a Bermuda Partnership Partner by Xxxx Settlement Company shall be excluded for purposes of such determination determination, so long as (I) both Xxxx Settlement Company (as obligor) and the respective Bermuda Partnership Partner (as obligee) are parties to the Intercompany Subordination Agreement and (II) such intercompany receivable is at all times subject to the subordination provisions contained in the Intercompany Subordination Agreement;
(ii) no Bermuda Partnership Partner shall merge, consolidate with or be liquidated or dissolved into any other Person, provided, however, that any Bermuda Partnership Partner may merge or consolidate with or into any other Wholly-Owned Domestic Subsidiary of the U.S. Borrower formed for the sole purpose of reincorporating such Bermuda Partnership Partner in a different jurisdiction (andjurisdiction, thereafter, so long as the surviving entity of such merger or consolidation shall constitute remains a “Bermuda Partnership Partner” for all purposes of this Agreement and the other Credit Documents (subject to and bound by all terms and covenants herein and therein applicable to a “Bermuda Partnership Partner”));
(iii) no Bermuda Partnership Partner shall engage in any business other than a business which is the same or reasonably related to the business in which such Bermuda Partnership Partner is engaged on the Original Effective Date;
(iv) no later than one Business Day following the date upon which any Bermuda Partnership Partner receives or generates an Account (as defined in the U.S. Security Agreement), such Account shall be sold on a non-recourse basis to Xxxx Settlement Company (at a discount of 2%) in exchange for a note payable (which shall at all times be subject to the subordination provisions contained in the Intercompany Subordination Agreement) and/or the assumption of a payable or payables owing by such Bermuda Partnership Partner to its relevant Subsidiary which sells fruit, inventory or other Property, or provides shipping services, to such Bermuda Partnership Partner (which assumed liabilities shall also be subject to the subordination provisions contained in the Intercompany Subordination Agreement); and
(ivv) upon the occurrence and during the continuance of any Specified Default or any Event of Default under Section 10.01 or 10.05, unless otherwise directed by the Administrative Agent or the Required Lenders, (x) neither the U.S. Borrower nor any of its Subsidiaries shall sell fruit, inventory or other Property to, or contract to perform shipping services for, any Bermuda Partnership Partner, (y) the U.S. Borrower and its Subsidiaries shall sell to Xxxx Settlement Company fruit, inventory and other Property formerly sold to, and shall contract with Xxxx Settlement Company to sell shipping services formerly contracted with, any Bermuda Partnership Partner and (z) no Bermuda Partnership Partner shall be permitted to receive any Dividends or the proceeds of any intercompany loans or advances from any of its Affiliates.
(d) Notwithstanding the foregoing, the Excluded Domestic Subsidiary will not engage in any business and will not own any assets or have any liabilities; provided that the Excluded Domestic Subsidiary may engage in those activities that are incidental to (x) the maintenance or termination of its corporate existence in compliance with applicable law, and (y) legal, tax and accounting matters in connection with any of the foregoing activities.
(e) Notwithstanding the foregoing, no Excluded Bermuda Insurance Company will engage in any business (other than the insurance related business conducted by it on the Restatement Effective Date (including, without limitation, its business as a captive insurer for the U.S. Borrower and its Affiliates with respect to property, casualty and liability insurance (including workers compensation insurance))) and will not own any Equity Interests or any other significant assets (other than assets used in the conduct of its business as described above) or have any liabilities (other than those liabilities under the Documents to which it is a party and those liabilities incurred in the ordinary course of its business as described above); provided, that an Excluded Bermuda Insurance Company may engage in those activities that are incidental to (x) the maintenance of its Company existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, this Agreement and the other Documents to which it is a party.
(f) Notwithstanding anything to the contrary contained above in this Section 9.01 or elsewhere in this Agreement, at no time shall the U.S. Borrower or any Subsidiary of the U.S. Borrower be an obligor or an obligee with respect to any Intercompany Debt, unless each obligor (including each Person which is a guarantor thereof) and each obligee with respect thereto are party to the Intercompany Subordination Agreement; provided, however, that the provisions hereof shall not apply to those Non-Wholly Owned Subsidiaries listed on Part D of Schedule XII.
(g) Notwithstanding the foregoing, no Excluded Foreign Subsidiary will engage in any business or own any assets (other than (x) Equity Interests of another Excluded Foreign Subsidiary and (y) immaterial assets with a Fair Market Value not exceeding $25,000) or have any liabilities; provided, that any Excluded Foreign Subsidiary may engage in those activities that are incidental to (x) the maintenance or termination of its corporate existence in compliance with applicable law and (y) legal, tax and accounting matters in connection with any of the foregoing activities.
Appears in 2 contracts
Samples: Credit Agreement (Dole Food Co Inc), Credit Agreement (Dole Food Co Inc)
Changes in Business; etc. (a) The U.S. Borrower and its Subsidiaries No Credit Party will not engage in any business other than the Permitted Business. Notwithstanding the foregoing:
(a) the General Partner will not itself: (A) engage in a Permitted Business.
; (bB) The Bermuda Partnership will not engage in any business and will not own any significant assets or any cash or Cash Equivalents (other than (I) its ownership general partnership Equity Interest in the Parent, (II) any intercompany loan permitted to be made by it pursuant to Section 10.5(v), (III) cash to be loaned, dividended, contributed and/or otherwise promptly applied for purposes not otherwise prohibited by this Agreement and (IV) other assets used or held in connection with the performance of Equity Interests of Qualified Non-U.S. Obligorsactivities permitted to be conducted by the General Partner); or (C) or have any material liabilities (other than those liabilities for which it is responsible under this Agreement, the Credit Documents to which it is a party, the GP Agreement, and any other Indebtedness permitted to be incurred by the General Partner pursuant to Section 10.4); provided however, provided that the Bermuda conduct of business restriction contained in clause (A) above shall not prohibit (or be construed to prohibit) the General Partner or its employees from conducting the activities contemplated to be conducted by the General Partner under the Partnership may (I) provide treasuryAgreement or the GP Agreement, accounting, logistic and other administrative support services to its Affiliates on an arms’ length basis and hold and retain cash earned administrative, management or ordinary course “holding company” activities necessary or desirable in connection with the operation of the Permitted Business through the General Partner, the Subsidiary Guarantors and the Issuers (including, without limitation, intercompany management functions and the provision of such servicesumbrella insurance policies); and
(b) the Parent will not itself: (A) engage in a Permitted Business; (B) own any significant assets (other than (I) the Equity Interests in the Company, (II) receive and hold additional cash and Cash Equivalents from its Subsidiaries and/or its Affiliatesany intercompany loan permitted to be made by it pursuant to Section 10.5(v), so long as the same are promptly loaned, distributed and/or contributed to its Subsidiaries and/or Affiliates in a transaction otherwise permitted by this Agreement and (III) engage in those activities that cash to be loaned, dividended, contributed and/or otherwise promptly applied for purposes not otherwise prohibited by this Agreement, and (iIV) are incidental to (x) the maintenance of its Company existence in compliance with applicable law, (y) legal, tax and accounting matters other assets used or held in connection with the performance of activities permitted to be conducted by the Parent); or (C) have any of the foregoing activities and liabilities (z) the entering into, and performing its obligations underother than those liabilities for which it is responsible under this Agreement, the Credit Partnership Agreement, the Documents to which it is a party party, any intercompany loan permitted to be incurred by it pursuant to Section 10.5(v) and any other Indebtedness permitted to be incurred by the Parent pursuant to Section 10.4); provided however, the conduct of business restriction contained in clause (iiA) are otherwise expressly permitted by this Agreement above shall not prohibit (or be construed to prohibit) the Parent from conducting administrative and other ordinary course “holding company” activities necessary or desirable in connection with the operation of the Permitted Business through the Subsidiary Guarantors and the other Credit DocumentsIssuers.
(c) Notwithstanding anything to the contrary contained above or elsewhere in this Agreement:
(i) the Bermuda Partnership Partners shall not collectively own or hold (x) Property (exclusive of Property leased or operated but not owned) with a Fair Market Value in excess of $30,000,000 at any time or (y) cash or Cash Equivalents in an aggregate in excess of $10,000,000; provided that (v) all assets owned by the Bermuda Partnership Partners on the Amendment No. 4 Effective Date (which assets shall have a net book value on the Amendment No. 4 Effective Date not to exceed $25,000,000) shall be excluded for purposes of such determination, (w) any cash and Cash Equivalents loaned and/or contributed to such Persons by Affiliates of such Persons shall be excluded for purposes of such determination, so long as the same are promptly loaned and/or distributed to other Affiliates of such Persons in a transaction otherwise permitted by this Agreement, (x) any inventory owned by the Bermuda Partnership Partners shall be excluded for purposes of such determination, (y) any Equity Interests in the Bermuda Partnership which are held by the Bermuda Partnership Partners shall be excluded for purposes of such determination and (z) any intercompany receivable owed to a Bermuda Partnership Partner by Xxxx Settlement Company shall be excluded for purposes of such determination so long as such intercompany receivable is at all times subject to the subordination provisions contained in the Intercompany Subordination Agreement;
(ii) no Bermuda Partnership Partner shall merge, consolidate with or be liquidated or dissolved into any other Person, provided, however, that any Bermuda Partnership Partner may merge or consolidate with or into any other Wholly-Owned Domestic Subsidiary of the U.S. Borrower formed for the sole purpose of reincorporating such Bermuda Partnership Partner in a different jurisdiction (and, thereafter, the surviving entity of such merger or consolidation shall constitute a “Bermuda Partnership Partner” for all purposes of this Agreement and the other Credit Documents (subject to and bound by all terms and covenants herein and therein applicable to a “Bermuda Partnership Partner”));
(iii) no later than one Business Day following the date upon which any Bermuda Partnership Partner receives or generates an Account (as defined in the U.S. Security Agreement), such Account shall be sold on a non-recourse basis to Xxxx Settlement Company (at a discount of 2%) in exchange for a note payable (which shall at all times be subject to the subordination provisions contained in the Intercompany Subordination Agreement) and/or the assumption of a payable or payables owing by such Bermuda Partnership Partner to its relevant Subsidiary which sells fruit, inventory or other Property, or provides shipping services, to such Bermuda Partnership Partner (which assumed liabilities shall also be subject to the subordination provisions contained in the Intercompany Subordination Agreement); and
(iv) upon the occurrence and during the continuance of any Specified Default or any Event of Default under Section 10.01 or 10.05, unless otherwise directed by the Administrative Agent or the Required Lenders, (x) neither the U.S. Borrower nor any of its Subsidiaries shall sell fruit, inventory or other Property to, or contract to perform shipping services for, any Bermuda Partnership Partner, (y) the U.S. Borrower and its Subsidiaries shall sell to Xxxx Settlement Company fruit, inventory and other Property formerly sold to, and shall contract with Xxxx Settlement Company to sell shipping services formerly contracted with, any Bermuda Partnership Partner and (z) no Bermuda Partnership Partner shall be permitted to receive any Dividends or the proceeds of any intercompany loans or advances from any of its Affiliates.
Appears in 2 contracts
Samples: Note Purchase Agreement (Stonemor Partners Lp), Note Purchase Agreement (Stonemor Partners Lp)
Changes in Business; etc. (a) The U.S. Borrower Holdings and its Subsidiaries will not engage in any business other than a Permitted Business.
(b) The Notwithstanding the foregoing, Holdings will not engage in any business and will not own any significant assets (other than its ownership of the capital stock of the U.S. Borrower) or have any liabilities (other than those liabilities for which it is responsible under this Agreement, the Documents to which it is a party and any Shareholder Subordinated Note); provided that Holdings may (i) issue Shareholder Subordinated Notes, shares of Holdings Common Stock and options and warrants to purchase Holdings Common Stock, (ii) engage in those activities associated with expenses paid with Dividends made by the U.S. Borrower pursuant to Section 9.06(iv) and (iii) engage in those activities that are incidental to (x) the maintenance of its corporate existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, this Agreement and the other Documents to which it is a party.
(c) Notwithstanding the foregoing, the Bermuda Partnership will not engage in any business and will not own any significant assets or any cash or Cash Equivalents (other than its ownership of Equity Interests of Qualified Non-U.S. Obligors) or have any material liabilities (other than those liabilities for which it is responsible under the Credit Documents to which it is a party), provided that the Bermuda Partnership may (I) provide treasury, accounting, logistic and other administrative support services to its Affiliates on an arms’ ' length basis and hold and retain cash earned in connection with the provision of such services, (II) receive and hold additional cash and Cash Equivalents from its Subsidiaries and/or its Affiliates, so long as the same are promptly (and in any event within one Business Day of receipt thereof) loaned, distributed and/or contributed contributed, subject to Section 9.01(d), to its Subsidiaries and/or Affiliates in a transaction otherwise permitted by accordance with the requirements of Section 9.05 of this Agreement Agreement, and (III) engage in those activities that (i) are incidental to (x) the maintenance of its Company existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, the Credit Documents to which it is a party and (ii) are otherwise expressly permitted by this Agreement (other than pursuant to preceding Section 9.01(a)) and the other Credit Documents.
(cd) Notwithstanding anything to the contrary contained above or elsewhere in this Agreement:Agreement (including, without limitation, Sections 9.02 and 9.05):
(i) the Bermuda Partnership Partners shall not collectively own or hold (x) Property (exclusive of Property leased or operated but not owned) with a Fair Market Value in excess of $30,000,000 at any time or (y) cash or Cash Equivalents in an aggregate in excess of $10,000,000; provided that (v) all assets owned by the Bermuda Partnership Partners on the Third Amendment No. 4 Effective Date (which assets shall have a net book value on the Third Amendment No. 4 Effective Date not to exceed $25,000,00020,000,000) shall be excluded for purposes of such determination, (w) any cash and Cash Equivalents loaned and/or contributed to such Persons by Affiliates of such Persons shall be excluded for purposes of such determination, so long as the same are promptly (and in any event within one Business Day) loaned and/or distributed to other Affiliates of such Persons (other than another Bermuda Partnership Partner) in a transaction otherwise permitted by accordance with the requirements of this Agreement, (x) any inventory owned by the Bermuda Partnership Partners shall be excluded for purposes of such determination, (y) any Equity Interests in the Bermuda Partnership which are held by the Bermuda Partnership Partners shall be excluded for purposes of such determination and (z) any intercompany receivable owed to a Bermuda Partnership Partner by Xxxx Settlement Company shall be excluded for purposes of such determination determination, so long as (I) both Xxxx Settlement Company (as obligor) and the respective Bermuda Partnership Partner (as obligee) are parties to the Intercompany Subordination Agreement and (II) such intercompany receivable is at all times subject to the subordination provisions contained in the Intercompany Subordination Agreement;
(ii) no Bermuda Partnership Partner shall merge, consolidate with or be liquidated or dissolved into any other Person, provided, however, that any Bermuda Partnership Partner may merge or consolidate with or into any other Wholly-Owned Domestic Subsidiary of the U.S. Borrower formed for the sole purpose of reincorporating such Bermuda Partnership Partner in a different jurisdiction (andjurisdiction, thereafter, so long as the surviving entity of such merger or consolidation shall constitute remains a “"Bermuda Partnership Partner” " for all -133- purposes of this Agreement and the other Credit Documents (subject to and bound by all terms and covenants herein and therein applicable to a “"Bermuda Partnership Partner”)");
(iii) no Bermuda Partnership Partner shall engage in any business other than a business which is the same or reasonably related to the business in which such Bermuda Partnership Partner is engaged on the Effective Date;
(iv) no later than one Business Day following the date upon which any Bermuda Partnership Partner receives or generates an Account (as defined in the U.S. Security Agreement), such Account shall be sold on a non-recourse basis to Xxxx Settlement Company (at a discount of 2%) in exchange for a note payable (which shall at all times be subject to the subordination provisions contained in the Intercompany Subordination Agreement) and/or the assumption of a payable or payables owing by such Bermuda Partnership Partner to its relevant Subsidiary which sells fruit, inventory or other Property, or provides shipping services, to such Bermuda Partnership Partner (which assumed liabilities shall also be subject to the subordination provisions contained in the Intercompany Subordination Agreement); and
(ivv) upon the occurrence and during the continuance of any Specified Default or any Event of Default under Section 10.01 or 10.05, unless otherwise directed by the Administrative Agent or the Required Lenders, (x) neither the U.S. Borrower nor any of its Subsidiaries shall sell fruit, inventory or other Property to, or contract to perform shipping services for, any Bermuda Partnership Partner, (y) the U.S. Borrower and its Subsidiaries shall sell to Xxxx Settlement Company fruit, inventory and other Property formerly sold to, and shall contract with Xxxx Settlement Company to sell shipping services formerly contracted with, any Bermuda Partnership Partner and (z) no Bermuda Partnership Partner shall be permitted to receive any Dividends or the proceeds of any intercompany loans or advances from any of its Affiliates.
(e) Notwithstanding the foregoing, the Excluded Domestic Subsidiary will not engage in any business and will not own any assets or have any liabilities; provided that the Excluded Domestic Subsidiary may engage in those activities that are incidental to (x) the maintenance or termination of its corporate existence in compliance with applicable law, and (y) legal, tax and accounting matters in connection with any of the foregoing activities.
(f) Notwithstanding the foregoing, no Excluded Bermuda Insurance Company will engage in any business (other than the insurance related business conducted by it on the Effective Date (including, without limitation, its business as a captive insurer for Holdings and its Affiliates with respect to property, casualty and liability insurance (including workers compensation insurance))) and will not own any Equity Interests or any other significant assets (other than assets used in the conduct of its business as described above) or have any liabilities (other than those liabilities under the Documents to which it is a party and those liabilities incurred in the ordinary course of its business as described above); provided that an Excluded Bermuda Insurance Company may engage in those activities that are incidental to (x) the maintenance of its Company existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, this Agreement and the other Documents to which it is a party.
(g) Notwithstanding anything to the contrary contained above in this Section or elsewhere in this Agreement (but subject to subclause (5) of Section 13.19), at no time shall Holdings or any Subsidiary of Holdings be an obligor or an obligee with respect to any Intercompany Debt, unless each obligor (including each Person which is a guarantor thereof) and each obligee with respect thereto are party to the Intercompany Subordination Agreement; provided however, that the provisions hereof shall not apply to those Non-Wholly Owned Subsidiaries listed on Part D of Schedule XIII.
(h) Notwithstanding the foregoing, no Excluded Foreign Subsidiary will engage in any business or own any assets (other than (x) Equity Interests of another Excluded Foreign Subsidiary and (y) immaterial assets with a Fair Market Value not exceeding $25,000) or have any liabilities; provided that (I) notwithstanding the foregoing, an Excluded Foreign Subsidiary shall be permitted to engage in the business conducted by such Excluded Foreign Subsidiary on the Initial Borrowing Date and to own assets and have liabilities in excess of any amounts permitted above, so long as such Excluded Foreign Subsidiary is merged or consolidated into or with another Foreign Subsidiary that is a Qualified Obligor organized in the jurisdiction of organization of such Excluded Foreign Subsidiary within 180 days following the Initial Borrowing Date and (II) any Excluded Foreign Subsidiary may engage in those activities that are incidental to (x) the maintenance or termination of its corporate existence in compliance with applicable law and (y) legal, tax and accounting matters in connection with any of the foregoing activities.
Appears in 1 contract
Changes in Business; etc. (a) The U.S. Borrower and its Subsidiaries will not engage in any business other than a Permitted Business.
(b) The Bermuda Notwithstanding anything to the contrary contained in this Agreement, Cayman Partnership Shareholder #1 will not engage in any business and will not or own any significant assets or any cash or Cash Equivalents (other than (x) its ownership of the Equity Interests of Qualified Non-U.S. ObligorsCayman Partnership Shareholder #2, Cayman Partnership Shareholder #3 and the Cayman Partnership and (y) any cash, Cash Equivalents and/or intercompany receivables permitted to be held in accordance with the proviso to Section 8.23(a) or have any material liabilities (other than those liabilities for which it is responsible under the Credit Documents to which it is a party), ; provided that the Bermuda Cayman Partnership Shareholder #1 may (I) provide treasury, accounting, logistic and other administrative support services to its Affiliates on an arms’ length basis and hold and retain cash earned in connection with the provision of such services, (II) receive and hold additional cash and Cash Equivalents from its Subsidiaries and/or its Affiliates, so long as the same are promptly loaned, distributed and/or contributed to its Subsidiaries and/or Affiliates in a transaction otherwise permitted by this Agreement and (III) engage in those activities that (i) are incidental to (x) the maintenance of its Company corporate existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, the Credit Documents to which it is a party and (ii) are otherwise expressly permitted by this Agreement (other than pursuant to preceding Section 10.01(a)) and the other Credit Documents.
(c) Notwithstanding anything to the contrary contained above or elsewhere in this Agreement:
, Cayman Partnership Shareholder #2 will not engage in any business or own any significant assets (other than (x) its ownership of the Equity Interests of the Cayman Partnership and (y) any cash, Cash Equivalents and/or intercompany receivables permitted to be held in accordance with the proviso to Section 8.23(b)) or have any material liabilities (other than those liabilities for which it is responsible under the Credit Documents to which it is a party); provided that Cayman Partnership Shareholder #2 may engage in those activities that (i) the Bermuda Partnership Partners shall not collectively own or hold are incidental to (x) Property (exclusive the maintenance of Property leased or operated but not owned) its corporate existence in compliance with a Fair Market Value in excess of $30,000,000 at any time or (y) cash or Cash Equivalents in an aggregate in excess of $10,000,000; provided that (v) all assets owned by the Bermuda Partnership Partners on the Amendment No. 4 Effective Date (which assets shall have a net book value on the Amendment No. 4 Effective Date not to exceed $25,000,000) shall be excluded for purposes of such determination, (w) any cash and Cash Equivalents loaned and/or contributed to such Persons by Affiliates of such Persons shall be excluded for purposes of such determination, so long as the same are promptly loaned and/or distributed to other Affiliates of such Persons in a transaction otherwise permitted by this Agreement, (x) any inventory owned by the Bermuda Partnership Partners shall be excluded for purposes of such determinationapplicable law, (y) legal, tax and accounting matters in connection with any Equity Interests in of the Bermuda Partnership which are held by the Bermuda Partnership Partners shall be excluded for purposes of such determination foregoing activities and (z) any intercompany receivable owed the entering into, and performing its obligations under, the Credit Documents to which it is a Bermuda Partnership Partner by Xxxx Settlement Company shall be excluded for purposes of such determination so long as such intercompany receivable is at all times subject to the subordination provisions contained in the Intercompany Subordination Agreement;
party and (ii) no Bermuda Partnership Partner shall merge, consolidate with or be liquidated or dissolved into any other Person, provided, however, that any Bermuda Partnership Partner may merge or consolidate with or into any other Wholly-Owned Domestic Subsidiary of the U.S. Borrower formed for the sole purpose of reincorporating such Bermuda Partnership Partner in a different jurisdiction (and, thereafter, the surviving entity of such merger or consolidation shall constitute a “Bermuda Partnership Partner” for all purposes of are otherwise expressly permitted by this Agreement (other than pursuant to preceding Section 10.01(a)) and the other Credit Documents (subject to and bound by all terms and covenants herein and therein applicable to a “Bermuda Partnership Partner”));Documents.
(iiid) no later than one Business Day following the date upon which any Bermuda Partnership Partner receives or generates an Account (as defined in the U.S. Security Agreement), such Account shall be sold on a non-recourse basis to Xxxx Settlement Company (at a discount of 2%) in exchange for a note payable (which shall at all times be subject Notwithstanding anything to the subordination provisions contrary contained in the Intercompany Subordination this Agreement) and/or the assumption of a payable , Cayman Partnership Shareholder #3 will not engage in any business or payables owing by such Bermuda Partnership Partner to its relevant Subsidiary which sells fruit, inventory or own any significant assets (other Property, or provides shipping services, to such Bermuda Partnership Partner (which assumed liabilities shall also be subject to the subordination provisions contained in the Intercompany Subordination Agreement); and
(iv) upon the occurrence and during the continuance of any Specified Default or any Event of Default under Section 10.01 or 10.05, unless otherwise directed by the Administrative Agent or the Required Lenders, than (x) neither its ownership of the U.S. Borrower nor Equity Interests of the Cayman Partnership and (y) any cash, Cash Equivalents and/or intercompany receivables permitted to be held in accordance with the proviso to Section 8.23(c)) or have any material liabilities (other than those liabilities for which it is responsible under the Credit Documents to which it is a party); provided that Cayman Partnership Shareholder #3 may engage in those activities that (i) are incidental to (x) the maintenance of its Subsidiaries shall sell fruit, inventory or other Property to, or contract to perform shipping services for, any Bermuda Partnership Partnercorporate existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the U.S. Borrower and its Subsidiaries shall sell to Xxxx Settlement Company fruit, inventory and other Property formerly sold to, and shall contract with Xxxx Settlement Company to sell shipping services formerly contracted with, any Bermuda Partnership Partner foregoing activities and (z) no Bermuda Partnership Partner shall be the entering into, and performing its obligations under, the Credit Documents to which it is a party and (ii) are otherwise expressly permitted by this Agreement (other than pursuant to receive any Dividends or preceding Section 10.01(a)) and the proceeds of any intercompany loans or advances from any of its Affiliatesother Credit Documents.
Appears in 1 contract
Samples: Credit Agreement (EnerSys)
Changes in Business; etc. (a) The U.S. Borrower and its Subsidiaries will not engage in any business other than a Permitted Business.
(b) The Bermuda Partnership will not engage in any business and will not own any significant assets or any cash or Cash Equivalents (other than its ownership of Equity Interests of Qualified Non-U.S. Obligors) or have any material liabilities (other than those liabilities for which it is responsible under the Credit Documents to which it is a party), provided that the Bermuda Partnership may (I) provide treasury, accounting, logistic and other administrative support services to its Affiliates on an arms’ length basis and hold and retain cash earned in connection con- nection with the provision of such services, (II) receive and hold additional cash and Cash Equivalents from its Subsidiaries and/or its Affiliates, so long as the same are promptly (and in any event within one Business Day of receipt thereof) loaned, distributed and/or contributed contributed, subject to Section 9.01(c), to its Subsidiaries and/or Affiliates in a transaction otherwise permitted by accordance with the requirements of Section 9.05 of this Agreement and (III) engage in those activities that (i) are incidental to (x) the maintenance of its Company existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, the Credit Documents to which it is a party and (ii) are otherwise expressly permitted by this Agreement (other than pursuant to preceding Section 9.01(a)) and the other Credit Documents.
(c) Notwithstanding anything to the contrary contained above or elsewhere in this Agreement:Agreement (including, without limitation, Sections 9.02 and 9.05):
(i) the Bermuda Partnership Partners shall not collectively own or hold (x) Property (exclusive of Property leased or operated but not owned) with a Fair Market Value in excess of $30,000,000 at any time or (y) cash or Cash Equivalents in an aggregate in excess of $10,000,000; provided that (v) all assets owned by the Bermuda Partnership Partners on the Amendment No. 4 Restatement Effective Date (which assets shall have a net book value on the Amendment No. 4 Restatement Effective Date not to exceed $25,000,000) shall be excluded for purposes of such determination, (w) any cash and Cash Equivalents loaned and/or contributed to such Persons by Affiliates of such Persons shall be excluded for purposes of such determination, so long as the same are promptly (and in any event within one Business Day) loaned and/or distributed to other Affiliates of such Persons (other than another Bermuda Partnership Partner) in a transaction otherwise permitted by accordance with the requirements of this Agreement, (x) any inventory owned by the Bermuda Partnership Partners shall be excluded for purposes of such determination, (y) any Equity Interests in the Bermuda Partnership which are held by the Bermuda Partnership Partners shall be excluded for purposes of such determination and (z) any intercompany receivable owed to a Bermuda Partnership Partner by Xxxx Settlement Company shall be excluded for purposes of such determination determination, so long as (I) both Xxxx Settlement Company (as obligor) and the respective Bermuda Partnership Partner (as obligee) are parties to the Intercompany Subordination Agreement and (II) such intercompany receivable is at all times subject to the subordination provisions contained in the Intercompany Subordination Agreement;
(ii) no Bermuda Partnership Partner shall merge, consolidate with or be liquidated or dissolved into any other Person, provided, however, that any Bermuda Partnership Partner may merge or consolidate with or into any other Wholly-Owned Domestic Subsidiary of the U.S. Borrower formed for the sole purpose of reincorporating such Bermuda Partnership Partner in a different jurisdiction (andjurisdiction, thereafter, so long as the surviving entity of such merger or consolidation shall constitute remains a “Bermuda Partnership Partner” for all purposes of this Agreement and the other Credit Documents (subject to and bound by all terms and covenants herein and therein applicable to a “Bermuda Partnership Partner”));
(iii) no Bermuda Partnership Partner shall engage in any business other than a business which is the same or reasonably related to the business in which such Bermuda Partnership Partner is engaged on the Original Effective Date;
(iv) no later than one Business Day following the date upon which any Bermuda Partnership Partner receives or generates an Account (as defined in the U.S. Security Agreement), such Account shall be sold on a non-recourse basis to Xxxx Settlement Company (at a discount of 2%) in exchange for a note payable (which shall at all times be subject to the subordination provisions contained in the Intercompany Subordination Agreement) and/or the assumption of a payable or payables owing by such Bermuda Partnership Partner to its relevant Subsidiary which sells fruit, inventory or other Property, or provides shipping services, to such Bermuda Partnership Partner (which assumed liabilities shall also be subject to the subordination provisions contained in the Intercompany Subordination Agreement); and
(ivv) upon the occurrence and during the continuance of any Specified Default or any Event of Default under Section 10.01 or 10.05, unless otherwise directed by the Administrative Agent or the Required Lenders, (x) neither the U.S. Borrower nor any of its Subsidiaries shall sell fruit, inventory or other Property to, or contract to perform shipping services for, any Bermuda Partnership Partner, (y) the U.S. Borrower and its Subsidiaries shall sell to Xxxx Settlement Company fruit, inventory and other Property formerly sold to, and shall contract with Xxxx Settlement Company to sell shipping services formerly contracted with, any Bermuda Partnership Partner and (z) no Bermuda Partnership Partner shall be permitted to receive any Dividends or the proceeds of any intercompany loans or advances from any of its Affiliates.
(d) Notwithstanding the foregoing, the Excluded Domestic Subsidiary will not engage in any business and will not own any assets or have any liabilities; provided that the Excluded Domestic Subsidiary may engage in those activities that are incidental to (x) the maintenance or termination of its corporate existence in compliance with applicable law, and (y) legal, tax and accounting matters in connection with any of the foregoing activities.
(e) Notwithstanding the foregoing, no Excluded Bermuda Insurance Company will engage in any business (other than the insurance related business conducted by it on the Restatement Effective Date (including, without limitation, its business as a captive insurer for the U.S. Borrower and its Affiliates with respect to property, casualty and liability insurance (including workers compensation insurance))) and will not own any Equity Interests or any other significant assets (other than assets used in the conduct of its business as described above) or have any liabilities (other than those liabilities under the Documents to which it is a party and those liabilities incurred in the ordinary course of its business as described above); provided, that an Excluded Bermuda Insurance Company may engage in those activities that are incidental to (x) the maintenance of its Company existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, this Agreement and the other Documents to which it is a party.
(f) Notwithstanding anything to the contrary contained above in this Section 9.01 or elsewhere in this Agreement, at no time shall the U.S. Borrower or any Subsidiary of the U.S. Borrower be an obligor or an obligee with respect to any Intercompany Debt, unless each obligor (including each Person which is a guarantor thereof) and each obligee with respect thereto are party to the Intercompany Subordination Agreement; provided, however, that the provi- sions hereof shall not apply to those Non-Wholly Owned Subsidiaries listed on Part D of Schedule XII.
(g) Notwithstanding the foregoing, no Excluded Foreign Subsidiary will engage in any business or own any assets (other than (x) Equity Interests of another Excluded Foreign Subsidiary and (y) immaterial assets with a Fair Market Value not exceeding $25,000) or have any liabilities; provided, that any Excluded Foreign Subsidiary may engage in those activities that are incidental to (x) the maintenance or termination of its corporate existence in compliance with applicable law and (y) legal, tax and accounting matters in connection with any of the foregoing activities.
Appears in 1 contract
Samples: Credit Agreement (Dole Food Co Inc)
Changes in Business; etc. (a) The U.S. Borrower Holdings and its Subsidiaries will not engage in any business other than a Permitted Business.
(b) The Notwithstanding the foregoing, Holdings will not engage in any business and will not own any significant assets (other than its ownership of (w) cash and Cash Equivalents held by Holdings representing proceeds from the Wellbeing Project Financing, (x) the Equity Interests of Intermediate Holdco, (y) Intercompany Notes evidencing intercompany loans permitted to be made by it pursuant to Section 10.05 and (z) after the issuance thereof, the Equity Interests of each of the Unrestricted Wellbeing Joint Ventures) or have any liabilities (other than those liabilities for which it is responsible under this Agreement, the Documents to which it is a party (including, without limitation, the Term Credit Documents), any Shareholder Subordinated Note any Interest Rate Protection Agreement permitted to be entered into pursuant to Section 10.04(b)(iii) and any Intercompany Note evidencing an intercompany loan permitted to be incurred by Holdings pursuant to Section 10.05); provided that Holdings may (i) issue Shareholder Subordinated Notes, shares of Holdings Common Stock and options and warrants to purchase Holdings Common Stock, (ii) engage in those activities associated with expenses indirectly paid with Dividends made to it by Intermediate Holdco pursuant to Section 10.06(iv), (iii) engage in those activities associated with the purchase and ownership of the Equity Interests of the Unrestricted Wellbeing Joint Ventures permitted pursuant to Section 10.05(xx) and (iv) engage in those activities that are incidental to (x) the maintenance of its corporate existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, this Agreement and the other Documents (including, without limitation, the Term Credit Documents) to which it is a party.
(c) Notwithstanding the foregoing, the Bermuda Partnership will not engage in any business and will not own any significant assets or any cash or Cash Equivalents (other than its ownership of Equity Interests of Qualified Non-U.S. ObligorsForeign Subsidiaries) or have any material liabilities (other than those liabilities for which it is responsible under the Credit Documents to which it is a party), provided that the Bermuda Partnership may (I) provide treasury, accounting, logistic and other administrative support services to its Affiliates on an arms’ ' length basis and hold and retain cash earned in connection with the provision of such services, (II) receive and hold additional cash and Cash Equivalents from its Subsidiaries and/or its Affiliates, so long as the same are promptly (and in any event within one Business Day of receipt thereof) loaned, distributed and/or contributed contributed, subject to Section 10.01(d), to its Subsidiaries and/or Affiliates in a transaction otherwise permitted by accordance with the requirements of Section 10.05 of this Agreement Agreement, and (III) engage in those activities that (i) are incidental to (x) the maintenance of its Company existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, the Credit Documents to which it is a party and (ii) are otherwise expressly permitted by this Agreement (other than pursuant to preceding Section 10.01(a)) and the other Credit Documents.
(cd) Notwithstanding anything to the contrary contained above or elsewhere in this Agreement:Agreement (including, without limitation, Sections 10.02 and 10.05):
(i) the Bermuda Partnership Partners shall not collectively own or hold (x) Property (exclusive of Property leased or operated but not owned) with a Fair Market Value in excess of $30,000,000 at any time or (y) cash or Cash Equivalents in an aggregate in excess of $10,000,000; provided that (v) all assets owned by the Bermuda Partnership Partners on the Amendment No. 4 Effective Date (which assets shall have a net book value on the Amendment No. 4 Effective Date not to exceed $25,000,000) shall be excluded for purposes of such determination, (w) any cash and Cash Equivalents loaned and/or contributed to such Persons by Affiliates of such Persons shall be excluded for purposes of such determination, so long as the same are promptly (and in any event within one Business Day) loaned and/or distributed to other Affiliates of such Persons (other than another Bermuda Partnership Partner) in a transaction otherwise permitted by accordance with the requirements of this Agreement, (x) any inventory owned by the Bermuda Partnership Partners shall be excluded for purposes of such determination, (y) any Equity Interests in the Bermuda Partnership which are held by the Bermuda Partnership Partners shall be excluded for purposes of such determination and (z) any intercompany receivable owed to a Bermuda Partnership Partner by Xxxx Settlement Company shall be excluded for purposes of such determination determination, so long as (I) both Xxxx Settlement Company (as obligor) and the respective Bermuda Partnership Partner (as obligee) are parties to the Intercompany Subordination Agreement and (II) such intercompany receivable is at all times subject to the subordination provisions contained in the Intercompany Subordination Agreement;
(ii) no Bermuda Partnership Partner shall merge, consolidate with or be liquidated or dissolved into any other Person, provided, however, that any Bermuda Partnership Partner may merge or consolidate with or into any other Wholly-Owned Domestic Subsidiary of the U.S. Borrower formed for the sole purpose of reincorporating such Bermuda Partnership Partner in a different jurisdiction (andjurisdiction, thereafter, so long as the surviving entity of such merger or consolidation shall constitute remains a “"Bermuda Partnership Partner” " for all purposes of this Agreement and the other Credit Documents (subject to and bound by all terms and covenants herein and therein applicable to a “"Bermuda Partnership Partner”)");
(iii) no Bermuda Partnership Partner shall engage in any business other than a business which is the same or reasonably related to the business in which such Bermuda Partnership Partner is engaged on the Initial Borrowing Date;
(iv) no later than one Business Day following the date upon which any Bermuda Partnership Partner receives or generates an Account (as defined in the U.S. Security Agreement), such Account shall be sold on a non-recourse basis to Xxxx Settlement Company (at a discount of 2%) in exchange for a note payable (which shall at all times be subject to the subordination provisions contained in the Intercompany Subordination Agreement) and/or the assumption of a payable or payables owing by such Bermuda Partnership Partner to its relevant Subsidiary which sells fruit, inventory or other Property, or provides shipping services, to such Bermuda Partnership Partner (which assumed liabilities shall also be subject to the subordination provisions contained in the Intercompany Subordination Agreement); and
(iv) upon the occurrence and during the continuance of any Specified Default or any Event of Default under Section 10.01 or 10.05, unless otherwise directed by the Administrative Agent or the Required Lenders, (x) neither the U.S. Borrower nor any of its Subsidiaries shall sell fruit, inventory or other Property to, or contract to perform shipping services for, any Bermuda Partnership Partner, (y) the U.S. Borrower and its Subsidiaries shall sell to Xxxx Settlement Company fruit, inventory and other Property formerly sold to, and shall contract with Xxxx Settlement Company to sell shipping services formerly contracted with, any Bermuda Partnership Partner and (z) no Bermuda Partnership Partner shall be permitted to receive any Dividends or the proceeds of any intercompany loans or advances from any of its Affiliates.-129-
Appears in 1 contract
Changes in Business; etc. (a) The U.S. Borrower Holdings and its Subsidiaries will not engage in any business other than a Permitted Business.
(b) The Bermuda Partnership Notwithstanding the foregoing, Holdings will not engage in any business and will not own any significant assets or any cash or Cash Equivalents (other than its ownership of (x) the Equity Interests of Qualified Non-U.S. ObligorsIntermediate Holdco, (y) Intercompany Notes evidencing intercompany loans permitted to be made by it pursuant to Section 9.05 and (z) after the issuance thereof, the Equity Interests of each of the Unrestricted Wellbeing Joint Ventures) or have any material liabilities (other than those liabilities for which it is responsible under this Agreement, the Credit Documents to which it is a party, any Shareholder Subordinated Note and any Intercompany Note evidencing an intercompany loan permitted to be incurred by Holdings pursuant to Section 9.05); provided that Holdings may (i) issue Shareholder Subordinated Notes, shares of Holdings Common Stock and options and warrants to purchase Holdings Common Stock, (ii) engage in those activities associated with expenses indirectly paid with Dividends made to it by Intermediate Holdco pursuant to Section 9.06(iv), provided that the Bermuda Partnership may (Iiii) provide treasury, accounting, logistic and other administrative support services to its Affiliates on an arms’ length basis and hold and retain cash earned engage in connection those activities associated with the provision purchase and ownership of such services, (IIthe Equity Interests of the Unrestricted Wellbeing Joint Ventures permitted pursuant to Section 9.05(xxiv) receive and hold additional cash and Cash Equivalents from its Subsidiaries and/or its Affiliates, so long as the same are promptly loaned, distributed and/or contributed to its Subsidiaries and/or Affiliates in a transaction otherwise permitted by this Agreement and (IIIiv) engage in those activities that (i) are incidental to (x) the maintenance of its Company corporate existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, this Agreement and the Credit other Documents to which it is a party and (ii) are otherwise expressly permitted by this Agreement and the other Credit Documentsparty.
(c) Notwithstanding anything to the contrary contained above or elsewhere in this Agreement:
(i) the Bermuda Partnership Partners shall not collectively own or hold (x) Property (exclusive of Property leased or operated but not owned) with a Fair Market Value in excess of $30,000,000 at any time or (y) cash or Cash Equivalents in an aggregate in excess of $10,000,000; provided that (v) all assets owned by the Bermuda Partnership Partners on the Amendment No. 4 Effective Date (which assets shall have a net book value on the Amendment No. 4 Effective Date not to exceed $25,000,000) shall be excluded for purposes of such determination, (w) any cash and Cash Equivalents loaned and/or contributed to such Persons by Affiliates of such Persons shall be excluded for purposes of such determination, so long as the same are promptly loaned and/or distributed to other Affiliates of such Persons in a transaction otherwise permitted by this Agreement, (x) any inventory owned by the Bermuda Partnership Partners shall be excluded for purposes of such determination, (y) any Equity Interests in the Bermuda Partnership which are held by the Bermuda Partnership Partners shall be excluded for purposes of such determination and (z) any intercompany receivable owed to a Bermuda Partnership Partner by Xxxx Settlement Company shall be excluded for purposes of such determination so long as such intercompany receivable is at all times subject to the subordination provisions contained in the Intercompany Subordination Agreement;
(ii) no Bermuda Partnership Partner shall merge, consolidate with or be liquidated or dissolved into any other Person, provided, however, that any Bermuda Partnership Partner may merge or consolidate with or into any other Wholly-Owned Domestic Subsidiary of the U.S. Borrower formed for the sole purpose of reincorporating such Bermuda Partnership Partner in a different jurisdiction (and, thereafter, the surviving entity of such merger or consolidation shall constitute a “Bermuda Partnership Partner” for all purposes of this Agreement and the other Credit Documents (subject to and bound by all terms and covenants herein and therein applicable to a “Bermuda Partnership Partner”));
(iii) no later than one Business Day following the date upon which any Bermuda Partnership Partner receives or generates an Account (as defined in the U.S. Security Agreement), such Account shall be sold on a non-recourse basis to Xxxx Settlement Company (at a discount of 2%) in exchange for a note payable (which shall at all times be subject to the subordination provisions contained in the Intercompany Subordination Agreement) and/or the assumption of a payable or payables owing by such Bermuda Partnership Partner to its relevant Subsidiary which sells fruit, inventory or other Property, or provides shipping services, to such Bermuda Partnership Partner (which assumed liabilities shall also be subject to the subordination provisions contained in the Intercompany Subordination Agreement); and
(iv) upon the occurrence and during the continuance of any Specified Default or any Event of Default under Section 10.01 or 10.05, unless otherwise directed by the Administrative Agent or the Required Lenders, (x) neither the U.S. Borrower nor any of its Subsidiaries shall sell fruit, inventory or other Property to, or contract to perform shipping services for, any Bermuda Partnership Partner, (y) the U.S. Borrower and its Subsidiaries shall sell to Xxxx Settlement Company fruit, inventory and other Property formerly sold to, and shall contract with Xxxx Settlement Company to sell shipping services formerly contracted with, any Bermuda Partnership Partner and (z) no Bermuda Partnership Partner shall be permitted to receive any Dividends or the proceeds of any intercompany loans or advances from any of its Affiliates.
Appears in 1 contract
Changes in Business; etc. (a) The U.S. Borrower Holdings and its Subsidiaries will not engage in any business other than a Permitted Business.
(b) The Notwithstanding the foregoing, Holdings will not engage in any business and will not own any significant assets (other than its ownership of (w) cash and Cash Equivalents held by Holdings representing proceeds from the Wellbeing Project Financing, (x) the Equity Interests of Intermediate Holdco, (y) Intercompany Notes evidencing intercompany loans permitted to be made by it pursuant to Section 10.05 and (z) after the issuance thereof, the Equity Interests of each of the Unrestricted Wellbeing Joint Ventures) or have any liabilities (other than those liabilities for which it is responsible under this Agreement, the Documents to which it is a party (including, without limitation, the Term Credit Documents), any Shareholder Subordinated Note any Interest Rate Protection Agreement permitted to be entered into pursuant to Section 10.04(b)(iii) and any Intercompany Note evidencing an intercompany loan permitted to be incurred by Holdings pursuant to Section 10.05); provided that Holdings may (i) issue Shareholder Subordinated Notes, shares of Holdings Common Stock and options and warrants to purchase Holdings Common Stock, (ii) engage in those activities associated with expenses indirectly paid with Dividends made to it by Intermediate Holdco pursuant to Section 10.06(iv), (iii) engage in those activities associated with the purchase and ownership of the Equity Interests of the Unrestricted Wellbeing Joint Ventures permitted pursuant to Section 10.05(xx) and (iv) engage in those activities that are incidental to (x) the maintenance of its corporate existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, this Agreement and the other Documents (including, without limitation, the Term Credit Documents) to which it is a party.
(c) Notwithstanding the foregoing, the Bermuda Partnership will not engage in any business and will not own any significant assets or any cash or Cash Equivalents (other than its ownership of Equity Interests of Qualified Non-U.S. ObligorsForeign Subsidiaries) or have any material liabilities (other than those liabilities for which it is responsible under the Credit Documents to which it is a party), provided that the Bermuda Partnership may (I) provide treasury, accounting, logistic and other administrative support services to its Affiliates on an arms’ length basis and hold and retain cash earned in connection with the provision of such services, (II) receive and hold additional cash and Cash Equivalents from its Subsidiaries and/or its Affiliates, so long as the same are promptly (and in any event within one Business Day of receipt thereof) loaned, distributed and/or contributed contributed, subject to Section 10.01(d), to its Subsidiaries and/or Affiliates in a transaction otherwise permitted by accordance with the requirements of Section 10.05 of this Agreement Agreement, and (III) engage in those activities that (i) are incidental to (x) the maintenance of its Company existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, the Credit Documents to which it is a party and (ii) are otherwise expressly permitted by this Agreement (other than pursuant to preceding Section 10.01(a)) and the other Credit Documents.
(cd) Notwithstanding anything to the contrary contained above or elsewhere in this Agreement:Agreement (including, without limitation, Sections 10.02 and 10.05):
(i) the Bermuda Partnership Partners shall not collectively own or hold (x) Property (exclusive of Property leased or operated but not owned) with a Fair Market Value in excess of $30,000,000 at any time or (y) cash or Cash Equivalents in an aggregate in excess of $10,000,000; provided that (v) all assets owned by the Bermuda Partnership Partners on the Amendment No. 4 Effective Date (which assets shall have a net book value on the Amendment No. 4 Effective Date not to exceed $25,000,000) shall be excluded for purposes of such determination, (w) any cash and Cash Equivalents loaned and/or contributed to such Persons by Affiliates of such Persons shall be excluded for purposes of such determination, so long as the same are promptly (and in any event within one Business Day) loaned and/or distributed to other Affiliates of such Persons (other than another Bermuda Partnership Partner) in a transaction otherwise permitted by accordance with the requirements of this Agreement, (x) any inventory owned by the Bermuda Partnership Partners shall be excluded for purposes of such determination, (y) any Equity Interests in the Bermuda Partnership which are held by the Bermuda Partnership Partners shall be excluded for purposes of such determination and (z) any intercompany receivable owed to a Bermuda Partnership Partner by Xxxx Settlement Company shall be excluded for purposes of such determination determination, so long as (I) both Xxxx Settlement Company (as obligor) and the respective Bermuda Partnership Partner (as obligee) are parties to the Intercompany Subordination Agreement and (II) such intercompany receivable is at all times subject to the subordination provisions contained in the Intercompany Subordination Agreement;
(ii) no Bermuda Partnership Partner shall merge, consolidate with or be liquidated or dissolved into any other Person, provided, however, that any Bermuda Partnership Partner may merge or consolidate with or into any other Wholly-Owned Domestic Subsidiary of the U.S. Borrower formed for the sole purpose of reincorporating such Bermuda Partnership Partner in a different jurisdiction (andjurisdiction, thereafter, so long as the surviving entity of such merger or consolidation shall constitute remains a “Bermuda Partnership Partner” for all purposes of this Agreement and the other Credit Documents (subject to and bound by all terms and covenants herein and therein applicable to a “Bermuda Partnership Partner”));
(iii) no Bermuda Partnership Partner shall engage in any business other than a business which is the same or reasonably related to the business in which such Bermuda Partnership Partner is engaged on the Initial Borrowing Date;
(iv) no later than one Business Day following the date upon which any Bermuda Partnership Partner receives or generates an Account (as defined in the U.S. Security Agreement), such Account shall be sold on a non-recourse basis to Xxxx Settlement Company (at a discount of 2%) in exchange for a note payable (which shall at all times be subject to the subordination provisions contained in the Intercompany Subordination Agreement) and/or the assumption of a payable or payables owing by such Bermuda Partnership Partner to its relevant Subsidiary which sells fruit, inventory or other Property, or provides shipping services, to such Bermuda Partnership Partner (which assumed liabilities shall also be subject to the subordination provisions contained in the Intercompany Subordination Agreement); and
(ivv) upon the occurrence and during the continuance of any Specified Default or any Event of Default under Section 10.01 11.01 or 10.0511.05, unless otherwise directed by the Administrative Agent or the Required Lenders, (x) neither the U.S. Borrower nor any of its Subsidiaries shall sell fruit, inventory or other Property to, or contract to perform shipping services for, any Bermuda Partnership Partner, (y) the U.S. Borrower and its Subsidiaries shall sell to Xxxx Settlement Company fruit, inventory and other Property formerly sold to, and shall contract with Xxxx Settlement Company to sell shipping services formerly contracted with, any Bermuda Partnership Partner and (z) no Bermuda Partnership Partner shall be permitted to receive any Dividends or the proceeds of any intercompany loans or advances from any of its Affiliates.
(e) Notwithstanding the foregoing, the Excluded Domestic Subsidiary will not engage in any business and will not own any assets or have any liabilities; provided that the Excluded Domestic Subsidiary may engage in those activities that are incidental to (x) the maintenance or termination of its corporate existence in compliance with applicable law, and (y) legal, tax and accounting matters in connection with any of the foregoing activities.
(f) Notwithstanding the foregoing, no Excluded Bermuda Insurance Company will engage in any business (other than the insurance related business conducted by it on the Original Effective Date (including, without limitation, its business as a captive insurer for Holdings and its Affiliates with respect to property, casualty and liability insurance (including workers compensation insurance))) and will not own any Equity Interests or any other significant assets (other than assets used in the conduct of its business as described above) or have any liabilities (other than those liabilities under the Documents to which it is a party and those liabilities incurred in the ordinary course of its business as described above); provided that an Excluded Bermuda Insurance Company may engage in those activities that are incidental to (x) the maintenance of its Company existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, this Agreement and the other Documents to which it is a party.
(g) Notwithstanding anything to the contrary contained above in this Section or elsewhere in this Agreement, at no time shall Holdings or any Subsidiary of Holdings be an obligor or an obligee with respect to any Intercompany Debt, unless each obligor (including each Person which is a guarantor thereof) and each obligee with respect thereto are party to the Intercompany Subordination Agreement; provided however, that the provisions hereof shall not apply to those Non-Wholly Owned Subsidiaries listed on Schedule XIV.
(h) Notwithstanding the foregoing, no Excluded Foreign Subsidiary will engage in any business or own any assets (other than (x) Equity Interests of another Excluded Foreign Subsidiary and (y) immaterial assets with a Fair Market Value not exceeding $25,000) or have any liabilities; provided that any Excluded Foreign Subsidiary may engage in those activities that are incidental to (x) the maintenance or termination of its corporate existence in compliance with applicable law and (y) legal, tax and accounting matters in connection with any of the foregoing activities.
(i) Holdings shall not permit any Unrestricted Wellbeing Joint Venture to engage in any business other than the development, construction and operation of a well being center/hotel/spa/conference center/studio and reasonably related extensions thereof (including the promotion of nutritional education, production and distribution of nutrition- or health-oriented programming on cable television and the sale of educational videos). Notwithstanding the foregoing, Intermediate Holdco will not engage in any business and will not own any significant assets (other than its ownership of the capital stock of the Borrower and Corporate Holdco and Intercompany Notes evidencing intercompany loans permitted to be made by it pursuant to Section 10.05) or have any liabilities (other than those liabilities for which it is responsible under this Agreement, the Documents (including, without limitation, the Term Credit Documents) to which it is a party and any Intercompany Note evidencing an intercompany loan permitted to be incurred by it pursuant to Section 10.05); provided that Intermediate Holdco may (i) engage in those activities associated with expenses paid with Dividends made by the Borrower pursuant to Section 10.06(iv) and (ii) engage in those activities that are incidental to (x) the maintenance of its corporate existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, this Agreement and the other Documents to which it is a party. Notwithstanding the foregoing, Corporate Holdco will not engage in any business and will not own any significant assets or have any liabilities (other than those liabilities for which it is responsible under this Agreement and the Documents (including, without limitation, the Term Credit Documents) to which it is a party); provided that Corporate Holdco may (i) engage in those activities associated with expenses indirectly paid with Dividends made by the Borrower pursuant to Section 10.06(iv) and (ii) engage in those activities that are incidental to (x) the maintenance of its corporate existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, this Agreement and the other Documents to which it is a party.
Appears in 1 contract
Samples: Credit Agreement (Dole Food Co Inc)
Changes in Business; etc. (a) The U.S. Borrower and its Subsidiaries No Credit Party will not engage in any business other than the Permitted Business. Notwithstanding the foregoing:
(i) the General Partner will not itself: (A) engage in a Permitted Business.
; (bB) The Bermuda Partnership will not engage in any business and will not own any significant assets or any cash or Cash Equivalents (other than (I) its ownership general partnership Equity Interest in the Partnership, (II) cash to be loaned, dividended, contributed and/or otherwise promptly applied for purposes not otherwise prohibited by this Agreement and (III) other assets used or held in connection with the performance of Equity Interests of Qualified Non-U.S. Obligorsactivities permitted to be conducted by the General Partner); or (C) or have any material liabilities (other than those liabilities for which it is responsible under this Agreement, the Credit Documents to which it is a party, the GP Agreement, and any other Indebtedness permitted to be incurred by the General Partner pursuant to Section 10.4); provided however, the conduct of business restriction above shall not prohibit (or be construed to prohibit), provided that the Bermuda General Partner or its employees from conducting the activities contemplated to be conducted by the General Partner under the GP Agreement and the Partnership may (I) provide treasuryAgreement, accounting, logistic and other administrative support services to its Affiliates on an arms’ length basis and hold and retain cash earned administrative, management or ordinary course “holding company” activities necessary or desirable in connection with the operation of the Permitted Business through the General Partner and the Borrowers (including, without limitation, intercompany management functions and the provision of such servicesumbrella policies); and
(ii) the Partnership will not itself: (A) engage in a Permitted Business; (B) own any significant assets (other than (I) the Equity Interests in the Operating Company, (II) receive and hold additional cash and Cash Equivalents from its Subsidiaries and/or its Affiliatesany Intercompany Loan permitted to be made by it pursuant to Section 10.5(v), so long as the same are promptly loanedwhether or not evidenced by an Intercompany Note, distributed and/or contributed to its Subsidiaries and/or Affiliates in a transaction otherwise permitted by this Agreement and (III) engage in those activities that cash to be loaned, dividended, contributed and/or otherwise promptly applied for purposes not otherwise prohibited by this Agreement, and (iIV) are incidental to (x) the maintenance of its Company existence in compliance with applicable law, (y) legal, tax and accounting matters other assets used or held in connection with the performance of activities permitted to be conducted by the Partnership); or (C) have any of the foregoing activities and liabilities (z) the entering into, and performing its obligations underother than those liabilities for which it is responsible under this Agreement, the Credit Partnership Agreement, the Documents to which it is a party party, any Intercompany Loan permitted to be incurred by it pursuant to Section 10.5(v) and any other Indebtedness permitted to be incurred by the Partnership pursuant to Section 10.4); provided however, the conduct of business restriction contained in clause (iiA) are otherwise expressly permitted by this Agreement and the other Credit Documents.
above shall not prohibit (c) Notwithstanding anything or be construed to the contrary contained above or elsewhere in this Agreement:
(iprohibit) the Bermuda Partnership Partners shall not collectively own from conducting administrative and other ordinary course “holding company” activities necessary or hold (x) Property (exclusive of Property leased or operated but not owned) desirable in connection with a Fair Market Value in excess of $30,000,000 at any time or (y) cash or Cash Equivalents in an aggregate in excess of $10,000,000; provided that (v) all assets owned by the Bermuda Partnership Partners on the Amendment No. 4 Effective Date (which assets shall have a net book value on the Amendment No. 4 Effective Date not to exceed $25,000,000) shall be excluded for purposes of such determination, (w) any cash and Cash Equivalents loaned and/or contributed to such Persons by Affiliates of such Persons shall be excluded for purposes of such determination, so long as the same are promptly loaned and/or distributed to other Affiliates of such Persons in a transaction otherwise permitted by this Agreement, (x) any inventory owned by the Bermuda Partnership Partners shall be excluded for purposes of such determination, (y) any Equity Interests in the Bermuda Partnership which are held by the Bermuda Partnership Partners shall be excluded for purposes of such determination and (z) any intercompany receivable owed to a Bermuda Partnership Partner by Xxxx Settlement Company shall be excluded for purposes of such determination so long as such intercompany receivable is at all times subject to the subordination provisions contained in the Intercompany Subordination Agreement;
(ii) no Bermuda Partnership Partner shall merge, consolidate with or be liquidated or dissolved into any other Person, provided, however, that any Bermuda Partnership Partner may merge or consolidate with or into any other Wholly-Owned Domestic Subsidiary operation of the U.S. Borrower formed for Permitted Business through the sole purpose of reincorporating such Bermuda Partnership Partner in a different jurisdiction (and, thereafter, the surviving entity of such merger or consolidation shall constitute a “Bermuda Partnership Partner” for all purposes of this Agreement and the other Credit Documents (subject to and bound by all terms and covenants herein and therein applicable to a “Bermuda Partnership Partner”));
(iii) no later than one Business Day following the date upon which any Bermuda Partnership Partner receives or generates an Account (as defined in the U.S. Security Agreement), such Account shall be sold on a non-recourse basis to Xxxx Settlement Company (at a discount of 2%) in exchange for a note payable (which shall at all times be subject to the subordination provisions contained in the Intercompany Subordination Agreement) and/or the assumption of a payable or payables owing by such Bermuda Partnership Partner to its relevant Subsidiary which sells fruit, inventory or other Property, or provides shipping services, to such Bermuda Partnership Partner (which assumed liabilities shall also be subject to the subordination provisions contained in the Intercompany Subordination Agreement); and
(iv) upon the occurrence and during the continuance of any Specified Default or any Event of Default under Section 10.01 or 10.05, unless otherwise directed by the Administrative Agent or the Required Lenders, (x) neither the U.S. Borrower nor any of its Subsidiaries shall sell fruit, inventory or other Property to, or contract to perform shipping services for, any Bermuda Partnership Partner, (y) the U.S. Borrower and its Subsidiaries shall sell to Xxxx Settlement Company fruit, inventory and other Property formerly sold to, and shall contract with Xxxx Settlement Company to sell shipping services formerly contracted with, any Bermuda Partnership Partner and (z) no Bermuda Partnership Partner shall be permitted to receive any Dividends or the proceeds of any intercompany loans or advances from any of its AffiliatesBorrowers.
Appears in 1 contract
Changes in Business; etc. (a) The U.S. Borrower and its Subsidiaries will not engage in any business other than a Permitted Business.
(b) The Bermuda Partnership will not engage in any business and will not own any significant assets or any cash or Cash Equivalents (other than its ownership of Equity Interests of Qualified Non-U.S. Obligors) or have any material liabilities (other than those liabilities for which it is responsible under the Credit Documents to which it is a party), provided that the Bermuda Partnership may (I) provide treasury, accounting, logistic and other administrative support services to its Affiliates on an arms’ length basis and hold and retain cash earned in connection with the provision of such services, (II) receive and hold additional cash and Cash Equivalents from its Subsidiaries and/or its Affiliates, so long as the same are promptly loaned, distributed and/or contributed to its Subsidiaries and/or Affiliates in a transaction otherwise permitted by this Agreement and (III) engage in those activities that (i) are incidental to (x) the maintenance of its Company existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, the Credit Documents to which it is a party and (ii) are otherwise expressly permitted by this Agreement and the other Credit Documents.
(c) Notwithstanding anything to the contrary contained above or elsewhere in this Agreement:
(i) the Bermuda Partnership Partners shall not collectively own or hold (x) Property (exclusive of Property leased or operated but not owned) with a Fair Market Value in excess of $30,000,000 at any time or (y) cash or Cash Equivalents in an aggregate in excess of $10,000,000; provided that (v) all assets owned by the Bermuda Partnership Partners on the Amendment No. 4 3 Effective Date (which assets shall have a net book value on the Amendment No. 4 3 Effective Date not to exceed $25,000,000) shall be excluded for purposes of such determination, (w) any cash and Cash Equivalents loaned and/or contributed to such Persons by Affiliates of such Persons shall be excluded for purposes of such determination, so long as the same are promptly loaned and/or distributed to other Affiliates of such Persons in a transaction otherwise permitted by this Agreement, (x) any inventory owned by the Bermuda Partnership Partners shall be excluded for purposes of such determination, (y) any Equity Interests in the Bermuda Partnership which are held by the Bermuda Partnership Partners shall be excluded for purposes of such determination and (z) any intercompany receivable owed to a Bermuda Partnership Partner by Xxxx Settlement Company shall be excluded for purposes of such determination so long as such intercompany receivable is at all times subject to the subordination provisions contained in the Intercompany Subordination Agreement;
(ii) no Bermuda Partnership Partner shall merge, consolidate with or be liquidated or dissolved into any other Person, provided, however, that any Bermuda Partnership Partner may merge or consolidate with or into any other Wholly-Owned Domestic Subsidiary of the U.S. Borrower formed for the sole purpose of reincorporating such Bermuda Partnership Partner in a different jurisdiction (and, thereafter, the surviving entity of such merger or consolidation shall constitute a “Bermuda Partnership Partner” for all purposes of this Agreement and the other Credit Documents (subject to and bound by all terms and covenants herein and therein applicable to a “Bermuda Partnership Partner”));
(iii) no later than one Business Day following the date upon which any Bermuda Partnership Partner receives or generates an Account (as defined in the U.S. Security Agreement), such Account shall be sold on a non-recourse basis to Xxxx Settlement Company (at a discount of 2%) in exchange for a note payable (which shall at all times be subject to the subordination provisions contained in the Intercompany Subordination Agreement) and/or the assumption of a payable or payables owing by such Bermuda Partnership Partner to its relevant Subsidiary which sells fruit, inventory or other Property, or provides shipping services, to such Bermuda Partnership Partner (which assumed liabilities shall also be subject to the subordination provisions contained in the Intercompany Subordination Agreement); and
(iv) upon the occurrence and during the continuance of any Specified Default or any Event of Default under Section 10.01 or 10.05, unless otherwise directed by the Administrative Agent or the Required Lenders, (x) neither the U.S. Borrower nor any of its Subsidiaries shall sell fruit, inventory or other Property to, or contract to perform shipping services for, any Bermuda Partnership Partner, (y) the U.S. Borrower and its Subsidiaries shall sell to Xxxx Settlement Company fruit, inventory and other Property formerly sold to, and shall contract with Xxxx Settlement Company to sell shipping services formerly contracted with, any Bermuda Partnership Partner and (z) no Bermuda Partnership Partner shall be permitted to receive any Dividends or the proceeds of any intercompany loans or advances from any of its Affiliates.
Appears in 1 contract
Samples: Credit Agreement (Dole Food Co Inc)
Changes in Business; etc. (a) The U.S. Borrower Holdings and its Subsidiaries will not engage in any business other than a Permitted Business. Notwithstanding the foregoing, Holdings will not engage in any business and will not own any significant assets (other than its ownership of (w) cash and Cash Equivalents held by Holdings representing proceeds from the Wellbeing Project Financing, (x) the Equity Interests of Intermediate Holdco, (y) Intercompany Notes evidencing intercompany loans permitted to be made by it pursuant to Section 9.05 and (z) after the issuance thereof, the Equity Interests of each of the Unrestricted Wellbeing Joint Ventures) or have any liabilities (other than those liabilities for which it is responsible under this Agreement, the Documents to which it is a party (including, without limitation, the ABL Credit Documents), any Shareholder Subordinated Note, any Interest Rate Protection Agreement permitted to be entered into pursuant to Section to Section 9.04(b)(iii) and any Intercompany Note evidencing an intercompany loan permitted to be incurred by Holdings pursuant to Section 9.05); provided that Holdings may (i) issue Shareholder Subordinated Notes, shares of Holdings Common Stock and options and warrants to purchase Holdings Common Stock, (ii) engage in those activities associated with expenses indirectly paid with Dividends made to it by Intermediate Holdco pursuant to Section 9.06(iv), (iii) engage in those activities associated with the purchase and ownership of the Equity Interests of the Unrestricted Wellbeing Joint Ventures permitted pursuant to Section 9.05(xx) and (iv) engage in those activities that are incidental to (x) the maintenance of its corporate existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, this Agreement and the other Documents (including, without limitation, the ABL Credit Documents) to which it is a party.
(b) The Notwithstanding the foregoing, the Bermuda Partnership will not engage in any business and will not own any significant assets or any cash or Cash Equivalents (other than its ownership of Equity Interests of Qualified Non-U.S. Obligors) or have any material liabilities (other than those liabilities for which it is responsible under the Credit Documents to which it is a party), provided that the Bermuda Partnership may (I) provide treasury, accounting, logistic and other administrative support services to its Affiliates on an arms’ length basis and hold and retain cash earned in connection with the provision of such services, (II) receive and hold additional cash and Cash Equivalents from its Subsidiaries and/or its Affiliates, so long as the same are promptly (and in any event within one Business Day of receipt thereof) loaned, distributed and/or contributed contributed, subject to Section 9.01(d), to its Subsidiaries and/or Affiliates in a transaction otherwise permitted by accordance with the requirements of Section 9.05 of this Agreement and (III) engage in those activities that (i) are incidental to (x) the maintenance of its Company existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, the Credit Documents to which it is a party and (ii) are otherwise expressly permitted by this Agreement (other than pursuant to preceding Section 9.01(a)) and the other Credit Documents.
(c) Notwithstanding anything to the contrary contained above or elsewhere in this Agreement:Agreement (including, without limitation, Sections 9.02 and 9.05):
(i) the Bermuda Partnership Partners shall not collectively own or hold (x) Property (exclusive of Property leased or operated but not owned) with a Fair Market Value in excess of $30,000,000 at any time or (y) cash or Cash Equivalents in an aggregate in excess of $10,000,000; provided that (v) all assets owned by the Bermuda Partnership Partners on the Amendment No. 4 Restatement Effective Date (which assets shall have a net book value on the Amendment No. 4 Restatement Effective Date not to exceed $25,000,000) shall be excluded for purposes of such determination, (w) any cash and Cash Equivalents loaned and/or contributed to such Persons by Affiliates of such Persons shall be excluded for purposes of such determination, so long as the same are promptly (and in any event within one Business Day) loaned and/or distributed to other Affiliates of such Persons (other than another Bermuda Partnership Partner) in a transaction otherwise permitted by accordance with the requirements of this Agreement, (x) any inventory owned by the Bermuda Partnership Partners shall be excluded for purposes of such determination, (y) any Equity Interests in the Bermuda Partnership which are held by the Bermuda Partnership Partners shall be excluded for purposes of such determination and (z) any intercompany receivable owed to a Bermuda Partnership Partner by Xxxx Settlement Company shall be excluded for purposes of such determination determination, so long as (I) both Xxxx Settlement Company (as obligor) and the respective Bermuda Partnership Partner (as obligee) are parties to the Intercompany Subordination Agreement and (II) such intercompany receivable is at all times subject to the subordination provisions contained in the Intercompany Subordination Agreement;
(ii) no Bermuda Partnership Partner shall merge, consolidate with or be liquidated or dissolved into any other Person, provided, however, that any Bermuda Partnership Partner may merge or consolidate with or into any other Wholly-Owned Domestic Subsidiary of the U.S. Borrower formed for the sole purpose of reincorporating such Bermuda Partnership Partner in a different jurisdiction (andjurisdiction, thereafter, so long as the surviving entity of such merger or consolidation shall constitute remains a “Bermuda Partnership Partner” for all purposes of this Agreement and the other Credit Documents (subject to and bound by all terms and covenants herein and therein applicable to a “Bermuda Partnership Partner”));
(iii) no Bermuda Partnership Partner shall engage in any business other than a business which is the same or reasonably related to the business in which such Bermuda Partnership Partner is engaged on the Original Effective Date;
(iv) no later than one Business Day following the date upon which any Bermuda Partnership Partner receives or generates an Account (as defined in the U.S. Security Agreement), such Account shall be sold on a non-recourse basis to Xxxx Settlement Company (at a discount of 2%) in exchange for a note payable (which shall at all times be subject to the subordination provisions contained in the Intercompany Subordination Agreement) and/or the assumption of a payable or payables owing by such Bermuda Partnership Partner to its relevant Subsidiary which sells fruit, inventory or other Property, or provides shipping services, to such Bermuda Partnership Partner (which assumed liabilities shall also be subject to the subordination provisions contained in the Intercompany Subordination Agreement); and
(ivv) upon the occurrence and during the continuance of any Specified Default or any Event of Default under Section 10.01 or 10.05, unless otherwise directed by the Administrative Agent or the Required Lenders, (x) neither the U.S. Borrower nor any of its Subsidiaries shall sell fruit, inventory or other Property to, or contract to perform shipping services for, any Bermuda Partnership Partner, (y) the U.S. Borrower and its Subsidiaries shall sell to Xxxx Settlement Company fruit, inventory and other Property formerly sold to, and shall contract with Xxxx Settlement Company to sell shipping services formerly contracted with, any Bermuda Partnership Partner and (z) no Bermuda Partnership Partner shall be permitted to receive any Dividends or the proceeds of any intercompany loans or advances from any of its Affiliates.
(d) Notwithstanding the foregoing, the Excluded Domestic Subsidiary will not engage in any business and will not own any assets or have any liabilities; provided that the Excluded Domestic Subsidiary may engage in those activities that are incidental to (x) the maintenance or termination of its corporate existence in compliance with applicable law, and (y) legal, tax and accounting matters in connection with any of the foregoing activities.
(e) Notwithstanding the foregoing, no Excluded Bermuda Insurance Company will engage in any business (other than the insurance related business conducted by it on the Original Effective Date (including, without limitation, its business as a captive insurer for Holdings and its Affiliates with respect to property, casualty and liability insurance (including workers compensation insurance))) and will not own any Equity Interests or any other significant assets (other than assets used in the conduct of its business as described above) or have any liabilities (other than those liabilities under the Documents to which it is a party and those liabilities incurred in the ordinary course of its business as described above); provided, that an Excluded Bermuda Insurance Company may engage in those activities that are incidental to (x) the maintenance of its Company existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, this Agreement and the other Documents to which it is a party.
(f) Notwithstanding anything to the contrary contained above in this Section 9.01 or elsewhere in this Agreement, at no time shall Holdings or any Subsidiary of Holdings be an obligor or an obligee with respect to any Intercompany Debt, unless each obligor (including each Person which is a guarantor thereof) and each obligee with respect thereto are party to the Intercompany Subordination Agreement; provided, however, that the provisions hereof shall not apply to those Non-Wholly Owned Subsidiaries listed on Part D of Schedule XII.
(g) Notwithstanding the foregoing, no Excluded Foreign Subsidiary will engage in any business or own any assets (other than (x) Equity Interests of another Excluded Foreign Subsidiary and (y) immaterial assets with a Fair Market Value not exceeding $25,000) or have any liabilities; provided, that any Excluded Foreign Subsidiary may engage in those activities that are incidental to (x) the maintenance or termination of its corporate existence in compliance with applicable law and (y) legal, tax and accounting matters in connection with any of the foregoing activities.
(h) Holdings shall not permit any Unrestricted Wellbeing Joint Venture to engage in any business other than the development, construction and operation of a well being center/hotel/spa/conference center/studio and reasonably related extensions thereof (including the promotion of nutritional education, production and distribution of nutrition- or health-oriented programming on cable television and the sale of educational videos).
(i) Notwithstanding the foregoing, Intermediate Holdco will not engage in any business and will not own any significant assets (other than its ownership of the capital stock of the U.S. Borrower and Corporate Holdco and Intercompany Notes evidencing intercompany loans permitted to be made by it pursuant to Section 9.05) or have any liabilities (other than those liabilities for which it is responsible under this Agreement, the Documents (including, without limitation, the ABL Credit Documents) to which it is a party and any Intercompany Note evidencing an intercompany loan permitted to be incurred by it pursuant to Section 9.05); provided that Intermediate Holdco may (i) engage in those activities associated with expenses paid with Dividends made by the U.S. Borrower pursuant to Section 9.06(iv) and (ii) engage in those activities that are incidental to (x) the maintenance of its corporate existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, this Agreement and the other Documents to which it is a party.
(j) Notwithstanding the foregoing, Corporate Holdco will not engage in any business and will not own any significant assets or have any liabilities (other than those liabilities for which it is responsible under this Agreement and the Documents (including, without limitation, the ABL Credit Documents) to which it is a party); provided that Corporate Holdco may (i) engage in those activities associated with expenses indirectly paid with Dividends made by the U.S. Borrower pursuant to Section 9.06(iv) and (ii) engage in those activities that are incidental to (x) the maintenance of its corporate existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, this Agreement and the other Documents to which it is a party.
Appears in 1 contract
Samples: Credit Agreement (Dole Food Co Inc)
Changes in Business; etc. (a) The U.S. Borrower Holdings and its Subsidiaries will not engage in any business other than a Permitted Business.
(b) The Notwithstanding the foregoing, Holdings will not engage in any business and will not own any significant assets (other than its ownership of (w) cash and Cash Equivalents held by Holdings representing proceeds from the Wellbeing Project Financing, (x) the Equity Interests of Intermediate Holdco, (y) Intercompany Notes evidencing intercompany loans permitted to be made by it pursuant to Section 9.05 and (z) after the issuance -105- thereof, the Equity Interests of each of the Unrestricted Wellbeing Joint Ventures) or have any liabilities (other than those liabilities for which it is responsible under this Agreement, the Documents to which it is a party (including, without limitation, the ABL Credit Documents), any Shareholder Subordinated Note, any Interest Rate Protection Agreement permitted to be entered into pursuant to Section to Section 9.04(b)(iii) and any Intercompany Note evidencing an intercompany loan permitted to be incurred by Holdings pursuant to Section 9.05); provided that Holdings may (i) issue Shareholder Subordinated Notes, shares of Holdings Common Stock and options and warrants to purchase Holdings Common Stock, (ii) engage in those activities associated with expenses indirectly paid with Dividends made to it by Intermediate Holdco pursuant to Section 9.06(iv), (iii) engage in those activities associated with the purchase and ownership of the Equity Interests of the Unrestricted Wellbeing Joint Ventures permitted pursuant to Section 9.05(xx) and (iv) engage in those activities that are incidental to (x) the maintenance of its corporate existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, this Agreement and the other Documents (including, without limitation, the ABL Credit Documents) to which it is a party.
(c) Notwithstanding the foregoing, the Bermuda Partnership will not engage in any business and will not own any significant assets or any cash or Cash Equivalents (other than its ownership of Equity Interests of Qualified Non-U.S. Obligors) or have any material liabilities (other than those liabilities for which it is responsible under the Credit Documents to which it is a party), provided that the Bermuda Partnership may (I) provide treasury, accounting, logistic and other administrative support services to its Affiliates on an arms’ ' length basis and hold and retain cash earned in connection with the provision of such services, (II) receive and hold additional cash and Cash Equivalents from its Subsidiaries and/or its Affiliates, so long as the same are promptly (and in any event within one Business Day of receipt thereof) loaned, distributed and/or contributed contributed, subject to Section 9.01(d), to its Subsidiaries and/or Affiliates in a transaction otherwise permitted by accordance with the requirements of Section 9.05 of this Agreement and (III) engage in those activities that (i) are incidental to (x) the maintenance of its Company existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, the Credit Documents to which it is a party and (ii) are otherwise expressly permitted by this Agreement (other than pursuant to preceding Section 9.01(a)) and the other Credit Documents.
(cd) Notwithstanding anything to the contrary contained above or elsewhere in this Agreement:Agreement (including, without limitation, Sections 9.02 and 9.05):
(i) the Bermuda Partnership Partners shall not collectively own or hold (x) Property (exclusive of Property leased or operated but not owned) with a Fair Market Value in excess of $30,000,000 at any time or (y) cash or Cash Equivalents in an aggregate in excess of $10,000,000; provided that (v) all assets owned by the Bermuda Partnership Partners on the Amendment No. 4 Restatement Effective Date (which assets shall have a net book value on the Amendment No. 4 Restatement Effective Date not to exceed $25,000,000) shall be excluded for purposes of such determination, (w) any cash and Cash Equivalents loaned and/or contributed to such Persons by Affiliates of such Persons shall be excluded for purposes of such determination, so long as the same are promptly (and in any event within one Business Day) loaned and/or distributed to other Affiliates of such Persons (other than another Bermuda Partnership Partner) in a transaction otherwise permitted by accordance with the requirements of this Agreement, (x) any inventory owned by the Bermuda Partnership Partners shall be excluded for purposes of such determination, (y) any Equity Interests in the Bermuda Partnership which are held by the Bermuda Partnership Partners shall be excluded for purposes of such determination and (z) any intercompany receivable owed to a Bermuda Partnership Partner by Xxxx Settlement Company shall be excluded for purposes of such determination determination, so long as (I) both Xxxx Settlement Company (as obligor) and the respective Bermuda Partnership Partner (as obligee) are parties to the Intercompany Subordination Agreement and (II) such intercompany receivable is at all times subject to the subordination provisions contained in the Intercompany Subordination Agreement;
(ii) no Bermuda Partnership Partner shall merge, consolidate with or be liquidated or dissolved into any other Person, provided, however, that any Bermuda Partnership Partner may merge or consolidate with or into any other Wholly-Owned Domestic Subsidiary of the U.S. Borrower formed for the sole purpose of reincorporating such Bermuda Partnership Partner in a different jurisdiction (andjurisdiction, thereafter, so long as the surviving entity of such merger or consolidation shall constitute remains a “"Bermuda Partnership Partner” " for all purposes of this Agreement and the other Credit Documents (subject to and bound by all terms and covenants herein and therein applicable to a “"Bermuda Partnership Partner”)");
(iii) no Bermuda Partnership Partner shall engage in any business other than a business which is the same or reasonably related to the business in which such Bermuda Partnership Partner is engaged on the Original Effective Date;
(iv) no later than one Business Day following the date upon which any Bermuda Partnership Partner receives or generates an Account (as defined in the U.S. Security Agreement), such Account shall be sold on a non-recourse basis to Xxxx Settlement Company (at a discount of 2%) in exchange for a note payable (which shall at all times be subject to the subordination provisions contained in the Intercompany Subordination Agreement) and/or the assumption of a payable or payables owing by such Bermuda Partnership Partner to its relevant Subsidiary which sells fruit, inventory or other Property, or provides shipping services, to such Bermuda Partnership Partner (which assumed liabilities shall also be subject to the subordination provisions contained in the Intercompany Subordination Agreement); and
(ivv) upon the occurrence and during the continuance of any Specified Default or any Event of Default under Section 10.01 or 10.05, unless otherwise directed by the Administrative Agent or the Required Lenders, (x) neither the U.S. Borrower nor any of its Subsidiaries shall sell fruit, inventory or other Property to, or contract to perform shipping services for, any Bermuda Partnership Partner, (y) the U.S. Borrower and its Subsidiaries shall sell to Xxxx Settlement Company fruit, inventory and other Property formerly sold to, and shall contract with Xxxx Settlement Company to sell shipping services formerly contracted with, any Bermuda Partnership Partner and (z) no Bermuda Partnership Partner shall be permitted to receive any Dividends or the proceeds of any intercompany loans or advances from any of its Affiliates.
(e) Notwithstanding the foregoing, the Excluded Domestic Subsidiary will not engage in any business and will not own any assets or have any liabilities; provided that the Excluded Domestic Subsidiary may engage in those activities that are incidental to (x) the maintenance or termination of its corporate existence in compliance with applicable law, and (y) legal, tax and accounting matters in connection with any of the foregoing activities.
(f) Notwithstanding the foregoing, no Excluded Bermuda Insurance Company will engage in any business (other than the insurance related business conducted by it on the Original Effective Date (including, without limitation, its business as a captive insurer for Holdings and its Affiliates with respect to property, casualty and liability insurance (including workers compensation insurance))) and will not own any Equity Interests or any other significant assets (other than assets used in the conduct of its business as described above) or have any liabilities (other than those liabilities under the Documents to which it is a party and those liabilities incurred in the ordinary course of its business as described above); provided, that an Excluded Bermuda Insurance Company may engage in those activities that are incidental to (x) the maintenance of its Company existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, this Agreement and the other Documents to which it is a party.
(g) Notwithstanding anything to the contrary contained above in this Section 9.01 or elsewhere in this Agreement, at no time shall Holdings or any Subsidiary of Holdings be an obligor or an obligee with respect to any Intercompany Debt, unless each obligor (including each Person which is a guarantor thereof) and each obligee with respect thereto are party to the Intercompany Subordination Agreement; provided, however, that the provisions hereof shall not apply to those Non-Wholly Owned Subsidiaries listed on Part D of Schedule XII.
(h) Notwithstanding the foregoing, no Excluded Foreign Subsidiary will engage in any business or own any assets (other than (x) Equity Interests of another Excluded Foreign Subsidiary and (y) immaterial assets with a Fair Market Value not exceeding $25,000) or have any liabilities; provided, that any Excluded Foreign Subsidiary may engage in those activities that are incidental to (x) the maintenance or termination of its corporate existence in compliance with applicable law and (y) legal, tax and accounting matters in connection with any of the foregoing activities.
(i) Holdings shall not permit any Unrestricted Wellbeing Joint Venture to engage in any business other than the development, construction and operation of a well being center/hotel/spa/conference center/studio and reasonably related extensions thereof (including the promotion of nutritional education, production and distribution of nutrition- or health-oriented programming on cable television and the sale of educational videos).
(j) Notwithstanding the foregoing, Intermediate Holdco will not engage in any business and will not own any significant assets (other than its ownership of the capital stock of the U.S. Borrower and Corporate Holdco and Intercompany Notes evidencing intercompany loans permitted to be made by it pursuant to Section 9.05) or have any liabilities (other than those liabilities for which it is responsible under this Agreement, the Documents (including, without limitation, the ABL Credit Documents) to which it is a party and any Intercompany Note evidencing an intercompany loan permitted to be incurred by it pursuant to Section 9.05); provided that Intermediate Holdco may (i) engage in those activities associated with expenses paid with Dividends made by the U.S. Borrower pursuant to Section 9.06(iv) and (ii) engage in those activities that are incidental to (x) the maintenance of its corporate existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, this Agreement and the other Documents to which it is a party.
(k) Notwithstanding the foregoing, Corporate Holdco will not engage in any business and will not own any significant assets or have any liabilities (other than those liabilities for which it is responsible under this Agreement and the Documents (including, without limitation, the ABL Credit Documents) to which it is a party); provided that Corporate Holdco may (i) engage in those activities associated with expenses indirectly paid with Dividends made by the U.S. Borrower pursuant to Section 9.06(iv) and (ii) engage in those activities that are incidental to (x) the maintenance of its corporate existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, this Agreement and the other Documents to which it is a party.
Appears in 1 contract
Changes in Business; etc. (a) The U.S. Borrower Holdings and its Subsidiaries will not engage in any business other than a Permitted Business.
(b) The Notwithstanding the foregoing, Holdings will not engage in any business and will not own any significant assets (other than its ownership of the capital stock of the U.S. Borrower) or have any liabilities (other than those liabilities for which it is responsible under this Agreement, the Documents to which it is a party and any Shareholder Subordinated Note); provided that Holdings may (i) issue Shareholder Subordinated Notes, shares of Holdings Common Stock and options and warrants to purchase Holdings Common Stock, (ii) engage in those activities associated with expenses paid with Dividends made by the U.S. Borrower pursuant to Section 9.06(iv) and (iii) engage in those activities that are incidental to (x) the maintenance of its corporate existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, this Agreement and the other Documents to which it is a party.
(c) Notwithstanding the foregoing, the Bermuda Partnership will not engage in any business and will not own any significant assets or any cash or Cash Equivalents (other than its ownership of Equity Interests of Qualified Non-U.S. Obligors) or have any material liabilities (other than those liabilities for which it is responsible under the Credit Documents to which it is a party), provided that the Bermuda Partnership may (I) provide treasury, accounting, logistic and other administrative support services to its Affiliates on an arms’ ' length basis and hold and retain cash earned in connection with the provision of such services, (II) receive and hold additional cash and Cash Equivalents from its Subsidiaries and/or its Affiliates, so long as the same are promptly (and in any event within one Business Day of receipt thereof) loaned, distributed and/or contributed contributed, subject to Section 9.01(d), to its Subsidiaries and/or Affiliates in a transaction otherwise permitted by accordance with the requirements of Section 9.05 of this Agreement Agreement, and (III) engage in those activities that (i) are incidental to (x) the maintenance of its Company existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, the Credit Documents to which it is a party and (ii) are otherwise expressly permitted by this Agreement (other than pursuant to preceding Section 9.01(a)) and the other Credit Documents.
(cd) Notwithstanding anything to the contrary contained above or elsewhere in this Agreement:Agreement (including, without limitation, Sections 9.02 and 9.05):
(i) the Bermuda Partnership Partners shall not collectively own or hold (x) Property (exclusive of Property leased or operated but not owned) with a Fair Market Value in excess of $30,000,000 20,000,000 at any time or (y) cash or Cash Equivalents in an aggregate in excess of $10,000,0005,000,000; provided that (v) all assets owned by the Bermuda Partnership Partners on the Amendment No. 4 Effective Date (which assets shall have a net book value on the Amendment No. 4 Effective Date not to exceed $25,000,00015,000,000) shall be excluded for purposes of such determination, (w) any cash and Cash Equivalents loaned and/or contributed to such Persons by Affiliates of such Persons shall be excluded for purposes of such determination, so long as the same are promptly (and in any event within one Business Day) loaned and/or distributed to other Affiliates of such Persons (other than another Bermuda Partnership Partner) in a transaction otherwise permitted by accordance with the requirements of this Agreement, (x) any inventory owned by the Bermuda Partnership Partners shall be excluded for purposes of such determination, (y) any Equity Interests in the Bermuda Partnership which are held by the Bermuda Partnership Partners shall be excluded for purposes of such determination and (z) any intercompany receivable owed to a Bermuda Partnership Partner by Xxxx Settlement Company shall be excluded for purposes of such determination determination, so long as (I) both Xxxx Settlement Company (as obligor) and the respective Bermuda Partnership Partner (as obligee) are parties to the Intercompany Subordination Agreement and (II) such intercompany receivable is at all times subject to the subordination provisions contained in the Intercompany Subordination Agreement;
(ii) no Bermuda Partnership Partner shall merge, consolidate with or be liquidated or dissolved into any other Person, provided, however, that any Bermuda Partnership Partner may merge or consolidate with or into any other Wholly-Owned Domestic Subsidiary of the U.S. Borrower formed for the sole purpose of reincorporating such Bermuda Partnership Partner in a different jurisdiction (andjurisdiction, thereafter, so long as the surviving entity of such merger or consolidation shall constitute remains a “"Bermuda Partnership Partner” " for all purposes of this Agreement and the other Credit Documents (subject to and bound by all terms and covenants herein and therein applicable to a “"Bermuda Partnership Partner”)");
(iii) no Bermuda Partnership Partner shall engage in any business other than a business which is the same or reasonably related to the business in which such Bermuda Partnership Partner is engaged on the Effective Date;
(iv) no later than one Business Day following the date upon which any Bermuda Partnership Partner receives or generates an Account (as defined in the U.S. Security Agreement), such Account shall be sold on a non-recourse basis to Xxxx Settlement Company (at a discount of 2%) in exchange for a note payable (which shall at all times be subject to the subordination provisions contained in the Intercompany Subordination Agreement) and/or the assumption of a payable or payables owing by such Bermuda Partnership Partner to its relevant Subsidiary which sells fruit, inventory or other Property, or provides shipping services, to such Bermuda Partnership Partner (which assumed liabilities shall also be subject to the subordination provisions contained in the Intercompany Subordination Agreement); and
(ivv) upon the occurrence and during the continuance of any Specified Default or any Event of Default under Section 10.01 or 10.05, unless otherwise directed by the Administrative Agent or the Required Lenders, (x) neither the U.S. Borrower nor any of its Subsidiaries shall sell fruit, inventory or other Property to, or contract to perform shipping services for, any Bermuda Partnership Partner, (y) the U.S. Borrower and its Subsidiaries shall sell to Xxxx Settlement Company fruit, inventory and other Property formerly sold to, and shall contract with Xxxx Settlement Company to sell shipping services formerly contracted with, any Bermuda Partnership Partner and (z) no Bermuda Partnership Partner shall be permitted to receive any Dividends or the proceeds of any intercompany loans or advances from any of its Affiliates.
(e) Notwithstanding the foregoing, the Excluded Domestic Subsidiary will not engage in any business and will not own any assets or have any liabilities; provided that an Excluded Domestic Subsidiary may engage in those activities that are incidental to (x) the maintenance or termination of its corporate existence in compliance with applicable law, and (y) legal, tax and accounting matters in connection with any of the foregoing activities.
(f) Notwithstanding the foregoing, no Excluded Bermuda Insurance Company will engage in any business (other than the insurance related business conducted by it on the Effective Date) and will not own any Equity Interests or any other significant assets (other than assets used in the conduct of its business as conducted on the Effective Date) or have any liabilities (other than those liabilities under the Documents to which it is a party and those liabilities incurred in the ordinary course of its business as conducted on the Effective Date); provided that an Excluded Bermuda Insurance Company may engage in those activities that are incidental to (x) the maintenance of its Company existence in compliance with applicable law, (y) legal, tax and accounting matters in connection with any of the foregoing activities and (z) the entering into, and performing its obligations under, this Agreement and the other Documents to which it is a party.
(g) Notwithstanding anything to the contrary contained above in this Section or elsewhere in this Agreement (but subject to subclause (5) of Section 13.19), at no time shall Holdings or any Subsidiary of Holdings be an obligor or an obligee with respect to any Intercompany Debt, unless each obligor (including each Person which is a guarantor thereof) and each obligee with respect thereto are party to the Intercompany Subordination Agreement; provided however, that the provisions hereof shall not apply to those Non-Wholly Owned Subsidiaries listed on Part D of Schedule XIII.
(h) Notwithstanding the foregoing, no Excluded Foreign Subsidiary will engage in any business or own any assets (other than (x) Equity Interests of another Excluded Foreign Subsidiary and (y) immaterial assets with a Fair Market Value not exceeding $25,000) or have any liabilities; provided that (I) notwithstanding the foregoing, an Excluded Foreign Subsidiary shall be permitted to engage in the business conducted by such Excluded Foreign Subsidiary on the Initial Borrowing Date and to own assets and have liabilities in excess of any amounts permitted above, so long as such Excluded Foreign Subsidiary is merged or consolidated into or with another Foreign Subsidiary that is a Qualified Obligor organized in the jurisdiction of organization of such Excluded Foreign Subsidiary within 180 days following the Initial Borrowing Date and (II) any Excluded Foreign Subsidiary may engage in those activities that are incidental to (x) the maintenance or termination of its corporate existence in compliance with applicable law and (y) legal, tax and accounting matters in connection with any of the foregoing activities.
Appears in 1 contract
