Intercompany Accounts 39 SECTION 3.31
Accounts Receivables Each existing Account constitutes, and each hereafter arising Account will, when such Account arises, constitute, the legally valid and binding obligation of the Account Debtor, except where the failure to do so could not reasonably be expected, individually or in the aggregate, to materially adversely affect the value or collectability of the Accounts included in the Collateral, taken as a whole. No Account Debtor has any defense, set-off, claim or counterclaim against any Grantor that can be asserted against the Administrative Agent, whether in any proceeding to enforce the Administrative Agent’s rights in the Accounts included in the Collateral, or otherwise, except for defenses, setoffs, claims or counterclaims that could not reasonably be expected, individually or in the aggregate, to materially adversely affect the value or collectability of the Accounts included in the Collateral, taken as a whole. None of the Grantors’ accounts receivables are, nor will any hereafter arising account receivable be, evidenced by a promissory note or other Instrument (other than a check) that has not been pledged to the Administrative Agent in accordance with the terms hereof.
Cash Accounts, Deposits and Money Movements Subject to the terms and conditions set forth in this Section 7, the Fund hereby authorizes the Custodian to open and maintain, with itself or with Subcustodians, cash accounts in United States Dollars, in such other currencies as are the currencies of the countries in which the Fund maintains Investments or in such other currencies as the Fund shall from time to time request by Instruction.
Other Indebtedness and Agreements (a) Permit (i) any waiver, supplement, modification, amendment, termination or release of any indenture, instrument or agreement pursuant to which any Material Indebtedness of the Borrower or any of the Subsidiaries is outstanding if the effect of such waiver, supplement, modification, amendment, termination or release would materially increase the obligations of the obligor or confer additional material rights on the holder of such Indebtedness in a manner adverse to the Borrower, any of the Subsidiaries or the Lender or (ii) any waiver, supplement, modification or amendment of its certificate of incorporation, bylaws, operating, management or partnership agreement or other organizational documents, to the extent any such waiver, supplement, modification or amendment would be adverse to the Lender in any material respect.
(i) Make any distribution, whether in cash, property, securities or a combination thereof, other than regular scheduled payments of principal and interest as and when due (to the extent not prohibited by applicable subordination provisions), in respect of, or pay, or commit to pay, or directly or indirectly (including pursuant to any Synthetic Purchase Agreement) redeem, repurchase, retire or otherwise acquire for consideration, or set apart any sum for the aforesaid purposes, any Indebtedness except (A) the payment of the Indebtedness created hereunder, (B) refinancings of Indebtedness permitted by Section 6.01 and (C) the payment of secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property or assets securing such Indebtedness or (ii) pay in cash any amount in respect of any Indebtedness (other than the Loans) or preferred Equity Interests that may at the obligor’s option be paid in kind or in other securities.
Intercompany Indebtedness The Company shall not create, incur, assume or otherwise become or remain directly or indirectly liable with respect to any Indebtedness arising from loans from any Subsidiary to the Company unless (a) such Indebtedness is unsecured and (b) such Indebtedness shall be expressly subordinate to the payment in full in cash of the Obligations on terms satisfactory to the Administrative Agent.
Intercompany Loans Notwithstanding any provision to the contrary set forth in the Transaction Documents (including, without limitation, clause (s) of the definition of “Eligible Loan” in Annex X), the Guarantor (i) shall not permit any Seller to sell, transfer, assign or otherwise convey any Intercompany Loan to Bunge Funding under the Sale Agreement that has a maturity in excess of six (6) years and (ii) shall either cause a Seller, Bunge Funding or the Trustee to demand repayment of all outstanding principal and accrued interest under each Intercompany Loan or cause a Seller to refinance such amounts by making a new Intercompany Loan to the applicable Obligor within six (6) years from the date of such Intercompany Loan.
Management Accounts To the extent that it owns any Management Account (including any lock-box related thereto), each Guarantor shall comply with Section 5.1 of the Base Indenture with respect to each such Management Account (including any lock-box related thereto).
Subordination of Intercompany Indebtedness Each Guarantor agrees that any and all claims of such Guarantor against the Borrower or any other Guarantor hereunder (each an “Obligor”) with respect to any “Intercompany Indebtedness” (as hereinafter defined), any endorser, obligor or any other guarantor of all or any part of the Guaranteed Obligations, or against any of its properties shall be subordinate and subject in right of payment to the prior payment, in full and in cash, of all Guaranteed Obligations; provided that, as long as no Event of Default has occurred and is continuing, such Guarantor may receive payments of principal and interest from any Obligor with respect to Intercompany Indebtedness. Notwithstanding any right of any Guarantor to ask, demand, xxx for, take or receive any payment from any Obligor, all rights, liens and security interests of such Guarantor, whether now or hereafter arising and howsoever existing, in any assets of any other Obligor shall be and are subordinated to the rights of the Holders of Guaranteed Obligations and the Administrative Agent in those assets. No Guarantor shall have any right to possession of any such asset or to foreclose upon any such asset, whether by judicial action or otherwise, unless and until all of the Guaranteed Obligations shall have been fully paid and satisfied (in cash) and all financing arrangements pursuant to any Loan Document, any Swap Agreement or any Banking Services Agreement have been terminated. If all or any part of the assets of any Obligor, or the proceeds thereof, are subject to any distribution, division or application to the creditors of such Obligor, whether partial or complete, voluntary or involuntary, and whether by reason of liquidation, bankruptcy, arrangement, receivership, assignment for the benefit of creditors or any other action or proceeding, or if the business of any such Obligor is dissolved or if substantially all of the assets of any such Obligor are sold, then, and in any such event (such events being herein referred to as an “Insolvency Event”), any payment or distribution of any kind or character, either in cash, securities or other property, which shall be payable or deliverable upon or with respect to any indebtedness of any Obligor to any Guarantor (“Intercompany Indebtedness”) shall be paid or delivered directly to the Administrative Agent for application on any of the Guaranteed Obligations, due or to become due, until such Guaranteed Obligations shall have first been fully paid and satisfied (in cash). Should any payment, distribution, security or instrument or proceeds thereof be received by the applicable Guarantor upon or with respect to the Intercompany Indebtedness after any Insolvency Event and prior to the satisfaction of all of the Guaranteed Obligations and the termination of all financing arrangements pursuant to any Loan Document among the Borrower and the Holders of Guaranteed Obligations, such Guarantor shall receive and hold the same in trust, as trustee, for the benefit of the Holders of Guaranteed Obligations and shall forthwith deliver the same to the Administrative Agent, for the benefit of the Holders of Guaranteed Obligations, in precisely the form received (except for the endorsement or assignment of the Guarantor where necessary), for application to any of the Guaranteed Obligations, due or not due, and, until so delivered, the same shall be held in trust by the Guarantor as the property of the Holders of Guaranteed Obligations. If any such Guarantor fails to make any such endorsement or assignment to the Administrative Agent, the Administrative Agent or any of its officers or employees is irrevocably authorized to make the same. Each Guarantor agrees that until the Guaranteed Obligations (other than the contingent indemnity obligations) have been paid in full (in cash) and satisfied and all financing arrangements pursuant to any Loan Document among the Borrower and the Holders of Guaranteed Obligations have been terminated, no Guarantor will assign or transfer to any Person (other than the Administrative Agent) any claim any such Guarantor has or may have against any Obligor.
Indebtedness and Liabilities None of the Loan Parties shall directly or indirectly create, incur, assume, guaranty, or otherwise become or remain directly or indirectly liable, on a fixed or contingent basis, with respect to any Indebtedness except: (a) the Obligations; (b) Capital Leases and purchase money financing for Equipment entered into in the ordinary course of business (subject to Section 5.21); (c) trade payables and normal accruals in the ordinary course of business not yet due and payable or with respect to which such Loan Party is contesting in good faith the amount or validity thereof by appropriate proceedings and then only to the extent that Borrower shall have established adequate reserves therefor, if appropriate under GAAP; (d) Indebtedness owing under the ADEX Note, Earn-Out Obligations owing to the T N S Sellers, Subordinated Debt owing under the Acquisition Agreements and to the extent constituting Indebtedness, working capital adjustments owing by Borrower to a seller in connection with the Acquisition or a Potential Target Acquisition; (e) Indebtedness described in Section 4.4(a) hereof (including Indebtedness described on Schedule 4.4) and any extension, refinancing, renewal or replacement thereof if the principal amount thereof does not exceed the principal amount of the Indebtedness so refinanced; (f) up to an aggregate amount of $1,500,000 in unsecured debt owing to sellers of the equity interests of all Potential Targets acquired by Borrower (the “Potential Target Subordinated Debt”), provided that the repayment of any such unsecured debt is subordinated on terms satisfactory to Agent, including a restriction against payment of cash interest, required amortization and mandatory prepayments and provided further that the stated maturity date of any such debt is acceptable to the Agent in its commercially reasonable judgment; (g) Subordinated Debt, in addition to the Subordinated Debt described in the preceding clauses (d) and (f), provided that (A) the terms and conditions upon which such Subordinated Debt is incurred (including without limitation covenants, rate of interest, maturity date and use of proceeds) shall have been reviewed to the reasonable satisfaction of Agent, (B) no Event of Default shall have occurred and be continuing, (C) the holder of such Subordinated Debt shall have executed a Subordination Agreement in form and substance reasonably acceptable to Agent and (D) not less than ten (10) Business Days prior to the incurrence of such Subordinated Debt, Borrower shall have delivered to Agent written notice of the applicable Loan Party’s intent to incur such Subordinated Debt, together with a certificate signed by the chief financial officer of Borrower which shall include a calculation in reasonable detail demonstrating that after giving effect to the incurrence of such Subordinated Debt on a Pro Forma Basis, Borrower would be in compliance with the financial covenant set forth in Section 5.21(D) (after decreasing the numerator of the then applicable ratio by 0.50) as of the end of and for the period of four consecutive fiscal quarters ending with the most recent fiscal quarter for which the Borrower delivered financial statements to Agent pursuant to Section 5.1(B); (h) Indebtedness in respect of letters of credit or banker’s acceptances to secure the performance of bids, tenders, leases, contracts (other than for the payment of money) or statutory obligations; (i) Indebtedness in favor of Borrower or any Guarantor pursuant to clause (g) of the definition of Permitted Investments; and (j) other Indebtedness in an aggregate principal amount at any time outstanding not to exceed $100,000.
Intercompany Arrangements (a) Except as set forth in Section 5.5(a) of the Seller Disclosure Schedules and except for this Agreement and the Ancillary Agreements, and the agreements specifically referred to therein as remaining outstanding after the Closing, all intercompany and intracompany accounts, indebtedness, transactions or Contracts between the Companies and their respective Subsidiaries, on the one hand, and the Seller and its Affiliates (other than the Companies and their respective Subsidiaries or with respect to the TS Business), on the other hand, shall be cancelled, settled, offset, capitalized or otherwise eliminated prior to the determination of Indebtedness for purposes of calculating the Cash Purchase Price, without any consideration or further liability to any party and without the need for any further documentation, prior to the Closing.
(b) The Parties recognize and acknowledge that the Enterprise-Wide Contracts set forth in Section 5.5(b) of the Seller Disclosure Schedules relate to both the TS Business and the Retained Business. All Enterprise-Wide Contracts shall be retained by the Seller. Following the date hereof, to the extent requested by the Buyer, the Seller and the Buyer shall use reasonable best efforts to negotiate a new Contract for the benefit of the Buyer and its Affiliates (including the Companies and their Subsidiaries) with respect to the matters covered by such Enterprise-Wide Contracts. The terms and conditions of any Contract or arrangement applicable to the TS Business entered into pursuant to this Section 5.5(b) shall be reasonably acceptable to the Buyer. For the avoidance of doubt, the Seller shall be under no obligation to obtain alternative Contracts with an equivalent level of pricing or other terms as provided in the Enterprise-Wide Contract sought to be obtained for the benefit of the Buyer. In the event that the Parties are not able to obtain any such new Contract, then the Parties shall use reasonable best efforts to cause the Transition Services Agreement to include, as a Service (as defined in the Transition Services Agreement), for such time as is reasonably necessary for the TS Business to obtain a new Contract covering such products and services, which period shall be set forth in the Transition Services Agreement, either (x) the products and services provided under such Contract or (y) reasonable alternative arrangements which permit the Buyer to continue operating the TS Business in substantially the same manner as currently conducted. The Buyer shall bear all costs and expenses incurred with Persons (other than the Seller or any of its Affiliates) that are parties to Enterprise-Wide Contracts with respect to any such efforts described in this Section 5.5(b).
(c) From and after the Closing, if either Party receives any (a) funds or any other assets intended for or otherwise the property of the other Party pursuant to the terms of this Agreement or any of the Ancillary Agreements, the receiving Party shall promptly (i) notify and (ii) forward such funds or other assets to, the other Party (and, for the avoidance of doubt, the Parties acknowledge and agree that there is no right of offset with respect to such funds or other assets, whether in connection with a dispute under this Agreement or any of the Ancillary Agreements or otherwise) or (b) mail, courier package, facsimile transmission, purchase order, invoice, service request or other document intended for or otherwise the property of the other Party pursuant to the terms of this Agreement or any of the Ancillary Agreements, the receiving Party shall promptly (i) notify and (ii) forward such mail, packages, transmission, order, invoice, request or other document to, the other Party.
