Loans, Investments, Etc. The Borrowers shall not, and shall not permit any Subsidiary to, directly or indirectly, make any loans or advance money or property to any person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the Capital Stock or Indebtedness or all or a substantial part of the assets or property of any person, or form or acquire any Subsidiaries, or agree to do any of the foregoing, except: (a) the endorsement of instruments for collection or deposit in the ordinary course of business; (b) investments in cash or Cash Equivalents; (c) stock or obligations issued to the Borrowers by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to the Borrowers in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person; provided, that, the original of any such stock or instrument evidencing such obligations shall be promptly delivered to the Lender, together with such stock power, assignment or endorsement by the Borrowers as the Lender may request; (d) obligations of account debtors to the Borrowers arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to the Borrowers; provided, that, promptly upon the receipt of the original of any such promissory note by the Borrowers, such promissory note shall be endorsed to the order of the Lender by the Borrowers and promptly delivered to the Lender as so endorsed; or (e) the loans and advances set forth on Schedule 8.14 to the Perfection Certificate which are not permitted by other provisions of Section 8.14 above; provided, that, as to such loans and advances, (i) the Borrowers shall not, directly or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto; and (ii) the Borrowers shall furnish to the Lender all notices or demands in connection with such loans and advances either received by the Borrowers or on their behalf, promptly after the receipt thereof, or sent by the Borrowers or on their behalf, concurrently with the sending thereof, as the case may be.
Appears in 2 contracts
Samples: Loan Agreement (Coachmen Industries Inc), Loan Agreement (Coachmen Industries Inc)
Loans, Investments, Etc. The Borrowers No Loan Party shall, nor shall not, and shall not it permit any Subsidiary to, directly or indirectly, make any loans or advance money or property to any person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the Capital Stock or Indebtedness or all or a substantial part of the assets or property of any person, or form or acquire any Subsidiaries, or agree to do make, any of the foregoingInvestment in any other Person, except:
(a) the endorsement of instruments for collection or deposit in the ordinary course of business;
(b) investments Investments in cash or Cash Equivalents; provided that the terms and conditions of Section 5.2 hereof shall have been satisfied with respect to the deposit account, investment account or other account in which such cash or Cash Equivalents are held;
(c) the existing Investments of the Company and its Subsidiaries as of the Closing Date, as set forth on Schedule 10.4;
(d) Investments made by a Subsidiary that is not a Loan Party;
(e) Investments made after the Closing Date, by any Loan Party to or in any Subsidiary that is not a Loan Party, provided that such Investments made pursuant to this Section 10.4(e)) do not exceed $25,000,000 in the aggregate for all such Subsidiaries at any time outstanding; so long as both before and after giving effect to the making of such Investments (i) the Aggregate Threshold Test is satisfied and (ii) no Default or Event of Default exists or would result therefrom;
(f) loans and advances made by any Loan Party to employees of such Loan Party not to exceed $2,500,000 in the aggregate at any time outstanding;
(g) stock or obligations issued to the Borrowers any Loan Party by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to the Borrowers such Loan Party in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person; provided, that, provided that the original of any such stock or instrument evidencing such obligations shall be promptly delivered to the LenderAgent, upon Agent’s request, together with such stock power, assignment or endorsement by the Borrowers such Loan Party as the Lender Agent may request;
(dh) obligations of account debtors to the Borrowers any Loan Party arising from Accounts which that are past due evidenced by a promissory note made by such account debtor payable to the Borrowerssuch Loan Party; provided, that, provided that promptly upon the receipt of the original of any such promissory note by the Borrowerssuch Loan Party, such promissory note shall be endorsed to the order of the Lender Agent by the Borrowers such Loan Party and promptly delivered to the Lender Agent as so endorsed; or;
(ei) Investments made by a Loan Party to or in another Loan Party after the Closing Date, provided that (i) such Investments to or in any Canadian Loan Party by any U.S. Loan Party shall be limited to such Investments, at levels and on terms, consistent with the Company’s historical practices and (ii) no Default or Event of Default exists or would result therefrom;
(j) Investments made by a Loan Party in or to Joint Ventures, not otherwise permitted by this Section 10.4, when taken together with all other Investments made pursuant to this clause (j) in the immediately preceding twelve (12) month period, in an amount not to exceed $25,000,000 (or such lesser amount as would not cause the aggregate amount of all such Investments made during such period, together with the aggregate consideration paid by the Loan Parties in respect of Permitted Acquisitions consummated during such period, to exceed the applicable amount permitted pursuant to clause (d) of the definition of Permitted Acquisitions); so long as both before and after giving effect to the making of such Investment (i) the Aggregate Threshold Test is satisfied and (ii) no Default or Event of Default exists or would result therefrom;
(k) Investments by any Loan Party not otherwise permitted by this Section 10.4 of up to $25,000,000, when taken together with all other Investments made pursuant to this clause (k) in the immediately preceding twelve (12) month period (including the outstanding amount of all Investments made in the form of loans or advances as of any date of determination), net of any amount realized in respect of the principal of such Investment upon the sale, collection or return of capital (not to exceed the original amount invested) during such period; so long as before and advances set forth on Schedule 8.14 after giving effect to the Perfection Certificate which are not permitted by other provisions making of Section 8.14 above; provided, that, as to such loans and advancesInvestment, (i) the Borrowers shall not, directly or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto; Aggregate Threshold Test is satisfied and (ii) no Default or Event of Default exists or would result therefrom;
(l) Investments constituting guarantees and other Indebtedness permitted under Section 10.3;
(m) Investments made after the Borrowers shall furnish Closing Date by the Company in LP Brasil Participacoes LTDA (“LP Brasil”) in an aggregate amount not to exceed $42,000,000 enabling LP Brasil (i) to pay the Lender all notices or demands purchase price in connection with the initial Acquisition of 75% of the Capital Stock of Masisa OSB Industrie e Comerico S.A. (“Masisa”), (ii) to purchase the remaining 25% of the Capital Stock of Masisa, and (iii) to fund its portion of the initial working capital contribution to Masisa as further described in Section 8.1 of the Shareholders’ Agreement (defined below), in each case, pursuant to (A) that certain Share Purchase Agreement dated as of May 12, 2008 and/or (B) that certain Shareholders’ Agreement in respect of LP-Masisa OSB Indutria e Comercio S.A. dated as of May 12, 2008 (the “Shareholders’ Agreement”); so long as before and after giving effect to the making of such loans Investment, no Default or Event of Default exists or would result therefrom;
(n) Investments by the Company in a Joint Venture with Xxxxxx Company in respect of the Xxxxxxxxx Mill in an aggregate amount not to exceed $35,000,000, pursuant to that certain Put and advances either Call Agreement between the Company and Xxxxxx Company dated as of August 2, 2006; so long as before and after giving effect to the making of such Investment, no Default or Event of Default exists or would result therefrom;
(o) Investments made after the Closing Date for the purchase of the remaining 50% of the Capital Stock of Canfor-LP OSB Limited Partnership, pursuant to that certain Amended and Restated Limited Partnership Agreement dated as of October 24, 2005, in an aggregate amount not to exceed (i) $50,000,000 plus (ii) the unused amount set forth in clause (d) of the definition of Permitted Acquisitions for the twelve (12) month period in which such Investment is made; provided that each of the requirements set forth in the definition of Permitted Acquisitions shall have been satisfied with respect to such Investment as if such Investment were a Permitted Acquisition; and
(p) promissory notes, earn-outs, other contingent obligations and/or non-cash consideration received by the Borrowers Company or on their behalfany of its Subsidiaries as partial payment of the total consideration for any sale or other disposition not prohibited by Section 10.1; provided that such promissory notes, promptly after earn-outs, other contingent obligations and/or non-cash consideration shall in no event exceed ten percent (10%) of the receipt thereoftotal consideration received in connection with a sale or other disposition permitted pursuant to clauses (c), (d), (f) or sent by the Borrowers or on their behalf, concurrently with the sending thereof, as the case may be.(h) through and including (p) of Section 10.1; and
Appears in 2 contracts
Samples: Loan and Security Agreement (Louisiana-Pacific Corp), Loan and Security Agreement (Louisiana-Pacific Corp)
Loans, Investments, Etc. The Borrowers Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary immediately prior to such merger) any Capital Stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advance money or property to any personadvances to, or invest in (by capital contributionmake or permit to exist any investment or any other interest in, dividend or otherwise) any other Person, or purchase or repurchase the Capital Stock otherwise acquire (in one transaction or Indebtedness a series of transactions) any assets of any other Person constituting a business unit or all or a substantial part of the assets or property of any personother Person (whether through purchase of assets, merger or otherwise), or form or acquire any Subsidiaries, or agree to do any of the foregoingforegoing (each of the foregoing an “Investment”), except:
(a) the endorsement of instruments for collection or deposit in the ordinary course of businessPermitted Investments;
(b) investments in cash or Cash EquivalentsPermitted Acquisitions;
(c) stock Investments by a Borrower, Guarantor or obligations issued to the Borrowers other Subsidiary of Parent in a Borrower or by any Person a Guarantor or other Subsidiary of Parent (or the representative of such Personother than a Borrower) in respect of Indebtedness of such Person owing to another Guarantor, in each case after the Borrowers in connection with the insolvencydate hereof, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person; provided, that, to the original extent that such Investment gives rise to any Indebtedness, such Indebtedness is permitted hereunder and to the extent that such Investment gives rise to the issuance of any shares of Capital Stock, such stock or instrument evidencing such obligations shall be promptly delivered to the Lender, together with such stock power, assignment or endorsement by the Borrowers as the Lender may requestissuance is permitted hereunder;
(d) obligations loans by a Borrower or Guarantor to another Borrower or Guarantor after the date hereof, provided, that,
(i) as to all of account debtors such loans, (A) within thirty (30) days after the end of each Fiscal Month, Borrowers shall provide to Agent a report in form and substance reasonably satisfactory to Agent of the Borrowers outstanding amount of such loans as of the last day of the immediately preceding month and indicating any loans made and payments received during the immediately preceding month, (B) the Indebtedness arising from Accounts which are past due pursuant to any such loan shall not be evidenced by a promissory note made by or other instrument, unless the single original of such account debtor payable note or other instrument (and any amendment or modification thereto) is promptly delivered to the Borrowers; provided, that, promptly upon the receipt Agent to hold as part of the original Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Agent may require,
(ii) as to loans by a Borrower to a Guarantor or by a Guarantor to another Guarantor, (A) as of the date of any such promissory note by loan and after giving effect thereto, the Borrowers, Borrower or Guarantor making such promissory note loan shall be endorsed Solvent, and (B) as of the date of any such loan and after giving effect thereto, as of the date of any such loan and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing,
(iii) as to loans by a Guarantor to a Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Agent and Lenders to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Agent, (B) promptly upon Agent’s request, Agent shall have received a subordination agreement, in form and substance satisfactory to Agent, providing for the terms of the subordination in right of payment of such Indebtedness of such Borrower to the order prior final payment and satisfaction in full of all of the Lender Obligations, duly authorized, executed and delivered by the Borrowers such Guarantor and promptly delivered such Borrower, and (C) such Borrower shall not, directly or indirectly make, or be required to make, any payments in respect of such Indebtedness prior to the Lender end of the then current term of this Agreement, except that Parent and Merchandising may make regularly scheduled payments of interest to Resources on a semi-annual basis at the end of the second and fourth Fiscal Quarters of Parent in respect of intercompany loans made by Resources to Parent or Merchandising, as the case may be, so endorsedlong as Resources immediately applies all of the proceeds of such interest payments to make an intercompany loan in cash to Parent or Merchandising in accordance with the terms of Section 9.10(d) hereof; orand
(iv) the aggregate outstanding principal amount of all loans made by Borrowers to Guarantors shall not exceed $100,000 at any time; and
(e) the loans and advances set forth on Schedule 8.14 to the Perfection Certificate 9.10 which are not permitted by the other provisions of Section 8.14 9.10 above; provided, that, :
(i) as to all such loans and advances, (iA) the Borrowers and Guarantors shall not, directly or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto; , except that Borrowers and Guarantors may amend any such agreement, document or instrument to increase the principal amount of any loans made by a Guarantor to a Borrower so long as the single original of any amendment to any note or other instrument shall be promptly delivered to Agent to hold as part of the Collateral with such endorsement and/or assignment by the payee of such note or other instrument as Agent may require, and (iiB) the Borrowers and Guarantors shall furnish to the Lender Agent all notices or demands in connection with such loans and advances either received by the Borrowers any Borrower or Guarantor or on their its behalf, promptly after the receipt thereof, or sent by the Borrowers any Borrower or Guarantor or on their its behalf, concurrently with the sending thereof, as the case may be; and
(ii) as to loans by a Guarantor to a Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Agent and Lenders to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Agent, (B) Agent shall have received the Intercompany Subordination Agreement duly authorized, executed and delivered by such Guarantor and such Borrower, and (C) such Borrower shall not, directly or indirectly make, or be required to make, any payments in respect of such Indebtedness prior to the end of the then current term of this Agreement, except that Parent and Merchandising may make payments of interest to Resources on a quarterly basis in respect of intercompany loans by Resources to Parent or Merchandising, as the case may be, so long as Resources immediately applies all of the proceeds of such interest payments to make an intercompany loan in cash to Parent or Merchandising in accordance with the terms of Section 9.10(d) hereof.
Appears in 2 contracts
Samples: Loan and Security Agreement (Hancock Fabrics Inc), Loan and Security Agreement (Hancock Fabrics Inc)
Loans, Investments, Etc. The Borrowers After the occurrence and during the continuance of a Trigger Event, Borrower shall not, and shall not permit Parent or any Subsidiary toRestricted Subsidiary, directly or indirectly, make make, or suffer or permit to exist, any loans or advance money or property to any person, or invest any investment in (by capital contribution, dividend or otherwise) or purchase or repurchase the Capital Stock or Indebtedness or all or a substantial part of the assets or property of any person, or form or acquire any Subsidiaries, or agree to do any of the foregoing, except:
(a) the endorsement of instruments for collection or deposit in the ordinary course of business;
(b) investments in cash or Cash Equivalents, provided, that, (i) no Revolving Loans are then outstanding and (ii) the terms and conditions of Section 5.2 hereof shall have been satisfied with respect to the deposit account or investment account in which such cash or Cash Equivalents are held;
(c) the existing equity investments of Borrower and the Restricted Subsidiaries as of the date hereof in their respective Subsidiaries, provided, that, Borrower shall have no obligation to make any other investment in, or loans to, or other payments in respect of, any such Subsidiaries;
(d) equity investments of Borrower or any Restricted Subsidiary in any wholly-owned Subsidiary incorporated under the laws of any State of the United States of America formed or acquired after the date hereof or in another Person if as a result of such investment such other Person is merged or consolidated with or into or transfers or conveys, all or substantially all of its assets to a Restricted Subsidiary, provided, that, (i) no Event of Default exists or would result from making the proposed investment, (ii) promptly upon such formation or acquisition, Borrower shall cause any such Subsidiary to execute and deliver to Agent, in form and substance satisfactory to Agent, (A) an absolute and unconditional guarantee of payment of the Obligations, (B) a security agreement granting to Agent a first security interest and lien (except as otherwise consented to in writing by Agent) upon all of the assets of such Subsidiary, and (C) such other agreements, documents and instruments as Agent may require, including, but not limited to, supplements and amendments hereto and other loan agreements or instruments evidencing Indebtedness of such new Subsidiary to Agent, (iii) promptly upon Agent's request: (A) Borrower or such Restricted Subsidiary shall execute and deliver to Agent, in form and substance satisfactory to Agent, a pledge and security agreement granting to Agent a first pledge of and lien on all of the issued and outstanding shares of Capital Stock of such Subsidiary, and (B) Borrower or such Restricted Subsidiary shall deliver the original stock certificates evidencing such shares of Capital Stock (or such other evidence as may be issued in the case of a limited liability company or other entity) together with stock powers with respect thereto duly executed in blank (or the equivalent thereof in the case of a limited liability company), (iv) as of the date of any payment in respect of such investment and after giving effect thereto, no Default or Event of Default shall exist or have occurred, and (v) in no event shall the aggregate amount of all capital contributions, investments or other amounts paid by Borrower or such Restricted Subsidiary to any Subsidiary formed or acquired after the date hereof or to any other person for or otherwise in connection with the formation or acquisition thereof exceed $250,000;
(e) stock or obligations issued to the Borrowers Borrower or any Restricted Subsidiary by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to the Borrowers Borrower or any Restricted Subsidiary in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person, or as a result of a foreclosure by, or other transfer to, Parent, Borrower or any Restricted Subsidiary with respect to a secured investment; provided, that, the original of any such stock or instrument evidencing such obligations shall be promptly delivered to the LenderAgent, upon Agent's request, together with such stock power, assignment or endorsement by the Borrowers Borrower or any Restricted Subsidiary as the Lender Agent may request;
(df) obligations of account debtors to the Borrowers Borrower or any Restricted Subsidiary arising from Accounts which were not paid on the original due date and which are past due evidenced by a promissory note made by such account debtor payable to the BorrowersBorrower or any Restricted Subsidiary; provided, that, promptly upon the receipt of the original of any such promissory note by the BorrowersBorrower or any Restricted Subsidiary, such promissory note shall be endorsed to the order of the Lender Agent by the Borrowers Borrower or any Restricted Subsidiary, as applicable and promptly delivered to the Lender Agent as so endorsed; or;
(eg) the Permitted Intercompany Indebtedness permitted under Section 9.9(f) hereof;
(h) the loans and advances set forth on Schedule 8.14 9.10 to the Perfection Certificate which are not permitted by other provisions of Section 8.14 aboveInformation Certificate; provided, that, as to such loans and advances, (i) the Borrowers Borrower shall not, and shall not permit any or any Restricted Subsidiary to, directly or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto; thereto and (ii) the Borrowers Borrower shall furnish to the Lender Agent all notices or demands in connection with such loans and advances either received by the Borrowers Borrower or any Restricted Subsidiary or on their its behalf, promptly after the receipt thereof, or sent by the Borrowers Borrower or any Restricted Subsidiary or on their its behalf, concurrently with the sending thereof, as the case may be;
(i) [Intentionally Omitted]
(j) unsecured investments in Hedging Obligations;
(k) investments made in connection with the purchase of assets pursuant to Repurchase Obligations;
(l) loans or advances to retailers in the ordinary course of business consistent with industry practices and not to exceed $5,000,000 outstanding at any one time;
(m) payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses for accounting purposes and that are made in the ordinary course of business consistent with industry practices;
(n) loans or advances to employees made in the ordinary course of business consistent with industry practices of Parent, Borrower or such Restricted Subsidiary; provided, however, that Parent, Borrower or such Restricted Subsidiary may make up to $2,000,000 of loans or advances in the aggregate to employees in the ordinary course of business regardless of industry practices of Parent, Borrower or such Restricted Subsidiary; and
(o) investments in any Person to the extent such investment represents the non-cash portion of the consideration received for an asset sale as permitted pursuant to the provisions of Section 9.7.
Appears in 1 contract
Samples: Loan and Security Agreement (Champion Enterprises Inc)
Loans, Investments, Etc. The Borrowers Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary immediately prior to such merger) any Capital Stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advance money or property to any personadvances to, or invest in (by capital contributionmake or permit to exist any investment or any other interest in, dividend or otherwise) any other Person, or purchase or repurchase the Capital Stock otherwise acquire (in one transaction or Indebtedness a series of transactions) any assets of any other Person constituting a business unit or all or a substantial part of the assets or property of any personother Person (whether through purchase of assets, merger or otherwise), or form or acquire any Subsidiaries, or agree to do any of the foregoingforegoing (each of the foregoing an "Investment"), except:
(a) the endorsement of instruments for collection or deposit in the ordinary course of businessPermitted Investments;
(b) investments in cash or Cash EquivalentsPermitted Acquisitions;
(c) stock Investments by a Borrower, Guarantor or obligations issued to the Borrowers other Subsidiary of Parent in a Borrower or by any Person a Guarantor or other Subsidiary of Parent (or the representative of such Personother than a Borrower) in respect of Indebtedness of such Person owing to another Guarantor, in each case after the Borrowers in connection with the insolvencydate hereof, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person; provided, that, to the original extent that such Investment gives rise to any Indebtedness, such Indebtedness is permitted hereunder and to the extent that such Investment gives rise to the issuance of any shares of Capital Stock, such stock or instrument evidencing such obligations shall be promptly delivered to the Lender, together with such stock power, assignment or endorsement by the Borrowers as the Lender may requestissuance is permitted hereunder;
(d) obligations loans by a Borrower or Guarantor to another Borrower or Guarantor after the date hereof, provided, that,
(i) as to all of account debtors such loans, (A) within thirty (30) days after the end of each fiscal month, Borrowers shall provide to Agent a report in form and substance satisfactory to Agent of the Borrowers outstanding amount of such loans as of the last day of the immediately preceding month and indicating any loans made and payments received during the immediately preceding month, (B) the Indebtedness arising from Accounts which are past due pursuant to any such loan shall not be evidenced by a promissory note made by or other instrument, unless the single original of such account debtor payable note or other instrument (and any amendment or modification thereto) is promptly delivered to the Borrowers; provided, that, promptly upon the receipt Agent to hold as part of the original Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Agent may require,
(ii) as to loans by a Borrower to a Guarantor or by a Guarantor to another Guarantor, (A) as of the date of any such promissory note by loan and after giving effect thereto, the Borrowers, Borrower or Guarantor making such promissory note loan shall be endorsed Solvent, and (B) as of the date of any such loan and after giving effect thereto, as of the date of any such loan and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing,
(iii) as to loans by a Guarantor to a Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Agent and Lenders to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Agent, (B) promptly upon Agent's request, Agent shall have received a subordination agreement, in form and substance satisfactory to Agent, providing for the terms of the subordination in right of payment of such Indebtedness of such Borrower to the order prior final payment and satisfaction in full of all of the Lender Obligations, duly authorized, executed and delivered by the Borrowers such Guarantor and promptly delivered such Borrower, and (C) such Borrower shall not, directly or indirectly make, or be required to make, any payments in respect of such Indebtedness prior to the Lender end of the then current term of this Agreement, except that Parent and Merchandising may make payments of interest to Resources on a quarterly basis in respect of intercompany loans by Resources to Parent or Merchandising, as the case may be, so endorsedlong as Resources immediately applies all of the proceeds of such interest payments to make an intercompany loan in cash to Parent or Merchandising in accordance with the terms of Section 9.10(d) hereof; orand
(iv) the aggregate outstanding principal amount of all loans made by Borrowers to Guarantors shall not exceed $100,000 at any time; and
(e) the loans and advances set forth on Schedule 8.14 9.10 to the Perfection Information Certificate which are not permitted by the other provisions of Section 8.14 9.10 above; provided, that, :
(i) as to all such loans and advances, (iA) the Borrowers and Guarantors shall not, directly or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto; , except that Borrowers and Guarantors may amend any such agreement, document or instrument to increase the principal amount of any loans made by a Guarantor to a Borrower so long as the single original of any amendment to any note or other instrument shall be promptly delivered to Agent to hold as part of the Collateral with such endorsement and/or assignment by the payee of such note or other instrument as Agent may require, and (iiB) the Borrowers and Guarantors shall furnish to the Lender Agent all notices or demands in connection with such loans and advances either received by the Borrowers any Borrower or Guarantor or on their its behalf, promptly after the receipt thereof, or sent by the Borrowers any Borrower or Guarantor or on their its behalf, concurrently with the sending thereof, as the case may be; and
(ii) as to loans by a Guarantor to a Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Agent and Lenders to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Agent, (B) Agent shall have received a subordination agreement, in form and substance satisfactory to Agent, providing for the terms of the subordination in right of payment of such Indebtedness of such Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and such Borrower, and (C) such Borrower shall not, directly or indirectly make, or be required to make, any payments in respect of such Indebtedness prior to the end of the then current term of this Agreement, except that Parent and Merchandisng may make payments of interest to Resources on a quarterly basis in respect of intercompany loans by Resources to Parent or Merchandisng, as the case may be, so long as Resources immediately applies all of the proceeds of such interest payments to make an intercompany loan in cash to Parent or Merchandising in accordance with the terms of Section 9.10(d) hereof.
Appears in 1 contract
Loans, Investments, Etc. The Borrowers shall notNo Borrower shall, and no Borrower shall not permit any Domestic Subsidiary to, directly or indirectly, make make, or suffer or permit to exist, any loans or advance advances of money or property to any person, or invest any investment in (by capital contribution, dividend or otherwise) ), or purchase or repurchase the Capital Stock or Indebtedness or all or a substantial part of the assets or property of any person, or form or acquire any Subsidiaries, or agree to do any of the foregoing, except:
(a) the endorsement of instruments for collection or deposit in the ordinary course of business;
(b) investments in cash or Cash Equivalents;
(c) investments in respect to any publicly traded securities, which public securities are traded in a nationally recognized stock exchange association, and which investment shall not exceed the sum of Two Million Dollars ($2,000,000), in the aggregate at any one time, at original cost plus the amount of proceeds from the sale of such publicly traded securities;
(d) the existing equity investments of any Borrower as of the date hereof in its Subsidiaries, provided, that such Borrower shall have no obligation to make any other investment in, or loans to, or other payments in respect of, any such Subsidiaries;
(e) investments of any Borrower in a SPE or of any Borrower or a SPE in a Subsidiary of a SPE, and investments of a SPE in the Securitization Assets;
(f) investments of any Borrower in a Subsidiary that is not a Domestic Subsidiary; provided that (i) as of the date of any payment in respect of such investment and after giving effect thereto, no Default or Event of Default shall exist or have occurred, (ii) as of the date of any payment in respect of such investment and after giving effect thereto, Excess Availability (A) shall be not less than Twenty Million Dollars ($20,000,000) and (B) for each of the immediately preceding thirty (30) consecutive days shall have been not less than Twenty Million Dollars ($20,000,000), and (iii) the amounts so invested in any such Subsidiary may not exceed (1) Five Million Dollars ($5,000,000) in the aggregate plus (2) such additional amount as may be permitted under Section 9.12;
(g) equity investments of any Borrower or any Domestic Subsidiary in any wholly-owned Domestic Subsidiary formed or acquired after the date hereof, provided, that (i) promptly upon such formation or acquisition, Borrowers shall cause any such Subsidiary to execute and deliver to Lender, in form and substance satisfactory to Lender, (A) an absolute and unconditional guaranty of payment of the Obligations, (B) a security agreement granting to Lender a first security interest and lien (except as otherwise consented to in writing by Lender) upon all of the assets of such Subsidiary, and (C) such other agreements, documents and instruments as Lender may require, including, but not limited to, supplements and amendments hereto and other loan agreements or instruments evidencing Indebtedness of such new Subsidiary to Lender, (ii) promptly upon Lender's request: (A) the Borrower that formed such Subsidiary shall execute and deliver to Lender, in form and substance satisfactory to Lender, a pledge and security agreement granting to Lender a first pledge of and lien on all of the issued and outstanding shares of Capital Stock of such Subsidiary, and (B) such Borrower shall deliver the original stock certificates evidencing such shares of Capital Stock (or such other evidence as may be issued in the case of a limited liability company or other entity) together with stock powers with respect thereto duly executed in blank (or the equivalent thereof in the case of a limited liability company), (iii) as of the date of any payment in respect of such investment and after giving effect thereto, no Default or Event of Default shall exist or have occurred, (iv) as of the date of any payment in respect of such investment and after giving effect thereto, Excess Availability (A) shall be not less than Twenty Million Dollars ($20,000,000) and (B) for each of the immediately preceding thirty (30) consecutive days shall have been not less than Twenty Million Dollars ($20,000,000), and (v) the amount so invested in any Subsidiary may not exceed (1) Ten Million Dollars ($10,000,000), provided that such Subsidiary conducts and engages in business similar to any business of Borrowers, plus (2) net profits after tax of such Subsidiary for each fiscal year during the term of this Agreement, which amount shall not be less than zero, plus (3) such additional amount as may be permitted under Section 9.12;
(h) equity investments of any Borrower in any other Borrower;
(i) stock or obligations issued to the Borrowers any Borrower by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to the Borrowers such Borrower in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person; provided, that, that the original of any such stock or instrument evidencing such obligations shall be promptly delivered to the Lender, upon Lender's request, together with such stock power, assignment or endorsement by the Borrowers as the Lender may request;
(dj) obligations of account debtors to the Borrowers any Borrower arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to the BorrowersBorrower; provided, that, that promptly upon the receipt of the original of any such promissory note by the BorrowersBorrower, such promissory note shall be endorsed to the order of the Lender by the Borrowers and promptly delivered to the Lender as so endorsed; or;
(ek) the loans and advances set forth on Schedule 8.14 to the Perfection Certificate which are not permitted by other provisions of Section 8.14 above9.10 hereto; provided, that, as to such loans and advances, (i) the Borrowers shall not, directly or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto; thereto and (ii) the Borrowers shall furnish to the Lender all notices or demands in connection with such loans and advances either received by the Borrowers any Borrower or on their its behalf, promptly after the receipt thereof, or sent by the Borrowers any Borrower or on their its behalf, concurrently with the sending thereof, as the case may be;
(l) (i) redemptions or repurchases of the Subordinated Notes in connection with a refinancing of the Subordinated Notes, and (ii) subject to Section 9.12, redemptions or repurchases of the Subordinated Notes prior to the date of the refinancing required under Section 4.3;
(m) subject to Section 9.12, loans to suppliers and licensees in the ordinary course of business;
(n) loans to officers and employees in respect to the purchase of capital stock of Borrowers by such officers and employees not prohibited by Section 9.13 and which amount of loans shall not exceed Three Million Dollars ($3,000,000) in the aggregate at any one time; and
(o) extensions of trade credit in the ordinary course of business.
Appears in 1 contract
Loans, Investments, Etc. The Borrowers Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary immediately prior to such merger) any Capital Stock, evidences of Indebtedness or other Securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advance money or property to any personadvances to, or invest in (by capital contributionmake or permit to exist any investment or any other interest in, dividend or otherwise) any other Person, or purchase or repurchase the Capital Stock otherwise acquire (in one transaction or Indebtedness a series of transactions) any assets of any other Person constituting a business unit or all or a substantial part of the assets or property of any personother Person (whether through purchase of assets, merger or otherwise), or form or acquire any Subsidiaries, or agree to do any of the foregoingforegoing (each of the foregoing an “Investment”), except:
(a) the endorsement of instruments for collection or deposit in the ordinary course of business;
(b) investments Investments in cash or Cash Equivalents; provided, that, the terms and conditions of Section 5.2 and Section 6.3 hereof shall have been satisfied with respect to the Deposit Account, investment account or other account in which such cash or Cash Equivalents are held;
(ci) the existing equity Investments of each Borrower and Guarantor as of the Closing Date in its Subsidiaries, provided, that, no Borrower or Guarantor shall have any further obligations or liabilities to make any capital contributions or other additional investments or other payments to or in or for the benefit of any of such Subsidiaries;
(ii) a Borrower or Guarantor may form a Subsidiary, provided, that,
(A) Agent shall have received promptly upon any such formation or acquisition all of the agreements, documents and instruments required by the terms of Sections 5.2 and 9.23 hereof,
(B) as of the date of the organization, formation or acquisition of any such Subsidiary and immediately after giving effect thereto, no Event of Default shall have occurred and be continuing, and
(C) in the event that Administrative Borrower requests that any such new Subsidiary that is directly or indirectly wholly owned by Parent be designated a Borrower hereunder, in no event shall any Inventory, Accounts or Credit Card Receivables of such Subsidiary be deemed Eligible Inventory, Eligible Accounts or Eligible Credit Card Receivables until Agent shall have conducted a field examination and appraisal with respect to such assets and the results of such field examination, appraisal, and other due diligence shall be reasonably satisfactory to Agent, and then only to the extent the criteria for Eligible Inventory, Eligible Accounts and Eligible Credit Card Receivables set forth herein are satisfied with respect thereto (as such criteria may be reasonably modified by Agent to reflect the results of Agent’s field examination and appraisal including any separate advance percentage with respect to such Credit Card Receivables as Agent may reasonably determine); and
(D) such Subsidiary shall be an operating company that engages in a Permitted Business or an operating company or a holding company formed to make a Permitted Acquisition.
(d) Investments by a Borrower or Guarantor in another Borrower or Guarantor, in each case after the date hereof, provided, that, (i) to the extent that such Investment gives rise to any Indebtedness, such Indebtedness is permitted hereunder, and (ii) to the extent that such Investment gives rise to the issuance of any shares of Capital Stock, such issuance is permitted hereunder;
(e) loans and advances by any Borrower, Guarantor or Subsidiary to employees of such Borrower or Guarantor not to exceed the principal amount of $500,000 in the aggregate at any time outstanding;
(f) stock or obligations issued to the Borrowers any Borrower, Guarantor or Subsidiary by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to the Borrowers such Borrower or Guarantor in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person; provided, that, the original of any such stock or instrument evidencing such obligations shall be promptly delivered to the LenderAgent, upon Agent’s request, together with such stock power, assignment or endorsement by the Borrowers such Borrower or Guarantor as the Lender Agent may request;
(dg) obligations of account debtors Account Debtors to the Borrowers any Borrower, Guarantor or Subsidiary arising from Accounts which are past due whether or not evidenced by a promissory note made by such account debtor Account Debtor payable to the Borrowerssuch Borrower or Guarantor; provided, that, promptly upon the receipt of the original of any such promissory note by the Borrowerssuch Borrower or Guarantor, such promissory note shall be endorsed to the order of the Lender Agent by the Borrowers such Borrower or Guarantor and promptly delivered to the Lender Agent as so endorsed; or;
(eh) loans by a Borrower or Guarantor or Subsidiary to another Borrower or Guarantor after the date hereof, provided, that,
(i) as to all of such loans, (A) the Indebtedness arising pursuant to any such loan shall not be evidenced by a promissory note or other instrument, unless the single original of such note or other instrument is promptly delivered to Agent upon its request to hold as part of the Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Agent may require, (B) as of the date of any such loan and after giving effect thereto, the Borrower or Guarantor making such loan shall be Solvent, and (C) as of the date of any such loan and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(ii) as to loans by a Guarantor or Subsidiary to a Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Agent and Lenders to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions reasonably acceptable to Agent, (B) promptly upon Agent’s request, Agent shall have received a subordination agreement, in form and substance reasonably satisfactory to Agent, providing for the terms of the subordination in right of payment of such Indebtedness of such Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and such Borrower, and (C) such Borrower shall not, directly or indirectly make, or be required to make, any payments in respect of such Indebtedness owing to any Subsidiary that is not a Borrower or Guarantor prior to the end of the then current term of this Agreement.
(i) the loans and advances set forth on Schedule 8.14 to the Perfection Certificate which are not permitted by other provisions of Section 8.14 above9.10 hereto; provided, that, as to such loans and advances, (i) the Borrowers and Guarantors shall not, directly or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto;
(j) other Investments or loans by a Borrower or Guarantor; provided, that, at the time of making any such Investment and immediately after giving effect thereto (i) the Required Conditions shall have been satisfied and (ii) the Borrowers no Event of Default shall furnish to the Lender all notices have occurred and be continuing;
(k) Permitted Acquisitions;
(l) Investments by any Borrower or demands Guarantor in connection with such loans and advances either received by the Borrowers or on their behalf, promptly after the receipt thereofany Foreign Subsidiary, or sent acquisitions by any Borrower or Guarantor of any foreign Acquired Business; provided, that, at the time of making any such Investment and immediately after giving effect thereto (i) the Required Conditions shall have been satisfied and (ii) no Event of Default shall have occurred and be continuing;
(m) other Investments by Borrowers and Guarantors and their Subsidiaries not otherwise permitted pursuant to subsections (a) through (l) of this Section 9.10, including, without limitation, any Investments by such Borrower or on their behalfGuarantor in any Foreign Subsidiary, concurrently with provided, that, (i) the sending thereofaggregate outstanding amount of all such Investments (valued at cost) shall not exceed $5,000,000 at any time (in each case determined without regard to any write-downs or write offs), as and (ii) at the case may be.time of making any such Investment and immediately after giving effect thereto no Event of Default shall have occurred and be continuing;and
Appears in 1 contract
Samples: Loan and Security Agreement (Franchise Group, Inc.)
Loans, Investments, Etc. The Borrowers Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary immediately prior to such merger) any Capital Stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advance money or property to any personadvances to, or invest in (by capital contributionmake or permit to exist any investment or any other interest in, dividend or otherwise) any other Person, or purchase or repurchase the Capital Stock otherwise acquire (in one transaction or Indebtedness a series of transactions) any assets of any other Person constituting a business unit or all or a substantial part of the assets or property of any personother Person (whether through purchase of assets, merger or otherwise), or form or acquire any Subsidiaries, or agree to do any of the foregoingforegoing (each of the foregoing an “Investment”), except:
(a) the endorsement of instruments for collection or deposit in the ordinary course of businessPermitted Investments;
(b) investments in cash or Cash EquivalentsPermitted Acquisitions;
(c) stock Investments by a Borrower, Guarantor or obligations issued to the Borrowers other Subsidiary of Parent in a Borrower or by any Person a Guarantor or other Subsidiary of Parent (or the representative of such Personother than a Borrower) in respect of Indebtedness of such Person owing to another Guarantor, in each case after the Borrowers in connection with the insolvencydate hereof, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person; provided, that, to the original extent that such Investment gives rise to any Indebtedness, such Indebtedness is permitted hereunder and to the extent that such Investment gives rise to the issuance of any shares of Capital Stock, such stock or instrument evidencing such obligations shall be promptly delivered to the Lender, together with such stock power, assignment or endorsement by the Borrowers as the Lender may requestissuance is permitted hereunder;
(d) obligations loans by a Borrower or Guarantor to another Borrower or Guarantor after the date hereof, provided, that,
(i) as to all of account debtors such loans, (A) within thirty (30) days after the end of each Fiscal Month, Borrowers shall provide to Working Capital Agent a report in form and substance reasonably satisfactory to Working Capital Agent of the Borrowers outstanding amount of such loans as of the last day of the immediately preceding month and indicating any loans made and payments received during the immediately preceding month, (B) the Indebtedness arising from Accounts which are past due pursuant to any such loan shall not be evidenced by a promissory note made by or other instrument, unless the single original of such account debtor payable note or other instrument (and any amendment or modification thereto) is promptly delivered to the Borrowers; provided, that, promptly upon the receipt Working Capital Agent to hold as part of the original Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Working Capital Agent may require,
(ii) as to loans by a Borrower to a Guarantor or by a Guarantor to another Guarantor, (A) as of the date of any such promissory note by loan and after giving effect thereto, the Borrowers, Borrower or Guarantor making such promissory note loan shall be endorsed Solvent, and (B) as of the date of any such loan and after giving effect thereto, as of the date of any such loan and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing,
(iii) as to loans by a Guarantor to a Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Agents and Lenders to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Agents, (B) promptly upon Working Capital Agent’s request, Working Capital Agent shall have received a subordination agreement, in form and substance satisfactory to Agents, providing for the terms of the subordination in right of payment of such Indebtedness of such Borrower to the order prior final payment and satisfaction in full of all of the Lender Obligations, duly authorized, executed and delivered by the Borrowers such Guarantor and promptly delivered such Borrower, and (C) such Borrower shall not, directly or indirectly make, or be required to make, any payments in respect of such Indebtedness prior to the Lender end of the then current term of this Agreement, except that Parent and Merchandising may make regularly scheduled payments of interest to Resources on a semi-annual basis at the end of the second and fourth Fiscal Quarters of Parent in respect of intercompany loans made by Resources to Parent or Merchandising, as the case may be, so endorsedlong as Resources immediately applies all of the proceeds of such interest payments to make an intercompany loan in cash to Parent or Merchandising in accordance with the terms of Section 9.10(d) hereof; orand
(iv) the aggregate outstanding principal amount of all loans made by Borrowers to Guarantors shall not exceed $100,000 at any time; and
(e) the loans and advances set forth on Schedule 8.14 to the Perfection Certificate 9.10 which are not permitted by the other provisions of Section 8.14 9.10 above; provided, that, :
(i) as to all such loans and advances, (iA) the Borrowers and Guarantors shall not, directly or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto; , except that Borrowers and Guarantors may amend any such agreement, document or instrument to increase the principal amount of any loans made by a Guarantor to a Borrower so long as the single original of any amendment to any note or other instrument shall be promptly delivered to Working Capital Agent to hold as part of the Collateral with such endorsement and/or assignment by the payee of such note or other instrument as Working Capital Agent may require, and (iiB) the Borrowers and Guarantors shall furnish to the Lender Working Capital Agent all notices or demands in connection with such loans and advances either received by the Borrowers any Borrower or Guarantor or on their its behalf, promptly after the receipt thereof, or sent by the Borrowers any Borrower or Guarantor or on their its behalf, concurrently with the sending thereof, as the case may be; and
(ii) as to loans by a Guarantor to a Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Agents and Lenders to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Agents, (B) Working Capital Agent shall have received the Intercompany Subordination Agreement duly authorized, executed and delivered by such Guarantor and such Borrower, and (C) such Borrower shall not, directly or indirectly make, or be required to make, any payments in respect of such Indebtedness prior to the end of the then current term of this Agreement, except that Parent and Merchandising may make payments of interest to Resources on a quarterly basis in respect of intercompany loans by Resources to Parent or Merchandising, as the case may be, so long as Resources immediately applies all of the proceeds of such interest payments to make an intercompany loan in cash to Parent or Merchandising in accordance with the terms of Section 9.10(d) hereof.
Appears in 1 contract
Loans, Investments, Etc. The Borrowers Borrower and each Guarantor shall not, and shall not permit any Subsidiary its Subsidiaries to, directly or indirectly, make any loans or advance money (including trade credit outstanding to any Foreign Subsidiary) or property to any person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the Capital Stock or Indebtedness or all or a substantial part of the assets or property of any person, or form or acquire any Subsidiaries, or agree to do any of the foregoing, except:
(a) the endorsement of instruments for collection or deposit in the ordinary course of business;
; (b) investments in cash or Cash Equivalents;
(c) stock or obligations issued , provided, that the terms and conditions of Section 5.2 hereof shall have been satisfied with respect to the Borrowers by any Person (deposit account, investment account or the representative of other account in which such Person) in respect of Indebtedness of such Person owing to the Borrowers in connection with the insolvency, bankruptcy, receivership cash or reorganization of such Person or a composition or readjustment of the debts of such PersonCash Equivalents are held; provided, that, the original of any such stock or instrument evidencing such obligations shall be promptly delivered to the Lender, together with such stock power, assignment or endorsement by the Borrowers as the Lender may request;79
(d) obligations of account debtors to the Borrowers arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to the Borrowers; provided, that, promptly upon the receipt of the original of any such promissory note by the Borrowers, such promissory note shall be endorsed to the order of the Lender by the Borrowers and promptly delivered to the Lender as so endorsed; or
(e) the loans and advances set forth on Schedule 8.14 to the Perfection Certificate which are not permitted by other provisions of Section 8.14 above; provided, that, as to such loans and advances, (i) the Borrowers shall notexisting equity investments of Borrower and each Guarantor as of the date hereof in its Subsidiaries, directly or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto; and (ii) equity contributions made by Holdings to Borrower, whether in the Borrowers shall furnish to form of the Lender all notices purchase of Capital Stock of Borrower or demands in connection with such loans and advances either received by the Borrowers or on their behalfotherwise, promptly (iii) equity contributions made after the receipt thereofdate hereof by Borrower in a Guarantor (other than Holdings and any Foreign Subsidiaries) so long as (A) as of the date of any such contribution and immediately after giving effect thereto, Excess Availability shall not be less than $7,500,000, (B) as of the date of any such contribution and immediately after giving effect thereto, no Event of Default shall have occurred and be continuing and Borrower shall be Solvent and (C) the aggregate amount of such equity contributions made do not exceed $7,500,000 during the term of this Agreement less the amount of intercompany loans made under Section 9.10(g)(iii), and (iv) equity contributions made after the date hereof by Borrower or sent by a Guarantor in (A) any Foreign Subsidiary (other than Brazil) so long as (1) as of the Borrowers date of any such contribution and immediately after giving effect thereto, Excess Availability shall not be less than $7,500,000, (2) as of the date of any such contribution and immediately after giving effect thereto, no Event of Default shall have occurred and be continuing and Borrower or on their behalfsuch Guarantor shall be Solvent, concurrently with (3) the sending thereofaggregate amount of such equity contributions made to such Foreign Subsidiaries (excluding Brazil) do not exceed $7,500,000 during the term of this Agreement less the amount of intercompany loans made under Section 9.10(h) to such Foreign Subsidiaries (excluding Brazil) and (B) Brazil so long as (1) as of the date of any such contribution and immediately after giving effect thereto, as no Event of Default shall have occurred and be continuing and Borrower or such Guarantor shall be Solvent, (2) if Excess Availability is at least $7,500,000 at the case time of and immediately after giving effect to such equity contribution, the aggregate amount of equity contributions that may bebe made to Brazil at such time shall not exceed $7,500,000, (3) if Excess Availability is at less than $7,500,000 at the time of and immediately after giving effect to such equity contribution, the aggregate amount of equity contributions that may be made to Brazil at such time shall not exceed $1,000,000 and (4) in no event shall the aggregate amount of equity contributions made to Brazil under this Section 9.10(c) plus the aggregate amount of loans made to Brazil under Section 9.10(h) ---- exceed $7,500,000.
Appears in 1 contract
Loans, Investments, Etc. The Borrowers Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly, make any loans or advance money or property to any person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the Capital Stock or Indebtedness or all or a substantial part of the assets or property of any person, or guarantee, assume, endorse, or otherwise become responsible for (directly or indirectly), the Indebtedness, performance, obligations or dividends of any other Person or form or acquire any Subsidiaries, or agree to do any of the foregoing, except:
(a) the endorsement of instruments for collection or deposit in the ordinary course of business;
(b) investments in cash or Cash Equivalents, provided, that, as to any of the foregoing, unless waived in writing by Agent, each Borrower, Guarantor or Subsidiary, as the case may be, shall take such actions as are deemed necessary by Agent to perfect the security interest of Agent in such investments, except that, each Borrower, Guarantor or Subsidiary, as the case may be, may make investments of the cash proceeds of any sale of its property (to the extent such disposition is permitted herein) other than Collateral, without taking actions to perfect the security interests of Agent in such investments;
(c) loans by a Borrower to any other Borrower after the date hereof, provided, that, as to any such loan, (i) each month Borrowers shall provide to Agent a report in form and substance reasonably satisfactory to Agent of the outstanding amount of such loans as of the last day of the immediately preceding month and indicating any loans made and payments received during the immediately preceding month, (ii) the Indebtedness arising pursuant to any such loan shall not be evidenced by a promissory note or other instrument, unless the single original of such note or other instrument is delivered to Agent to hold as part of the Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Agent may require, (iii) as of the date of any such loan and after giving effect thereto, the Borrower making such loan shall be Solvent; and (iv) as of the date of any such loan and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;
(d) any guaranties by any Borrower or Guarantor or other assumptions or endorsements of Indebtedness constituting permitted Indebtedness under Section 9.9 hereof;
(e) loans by a Guarantor (or a Subsidiary of a Guarantor or a Borrower other than a Borrower) to a Borrower after the date hereof, provided, that, as to any such loan (i) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Agent to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Agent, (ii) Agent shall have received, in form and substance satisfactory to Agent, a subordination agreement providing for the terms of the subordination in right of payment of such Indebtedness of such Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor or Subsidiary (as the case may be) and such Borrower, (iii) such Borrower shall not, directly or indirectly make, or be required to make, any payments in respect of such Indebtedness, (iv) each month Borrowers shall provide to Agent a report in form and substance satisfactory to Agent of the outstanding amount of such loans as of the last day of the immediately preceding month and indicating any loans made and payments received during the immediately preceding month, and (v) the Indebtedness arising pursuant to any such loan shall not be evidenced by a promissory note or other instrument, unless the single original of such note or other instrument is delivered to Agent to hold as part of the Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Agent may require;
(f) loans by a Borrower to a Guarantor; provided, that, as to any such loan, (i) each month Borrowers shall provide to Agent a report in form and substance satisfactory to Agent of the outstanding amount of such loans as of the last day of the immediately preceding month and indicating any loans made and payments received during the immediately preceding month, (ii) the Indebtedness arising pursuant to any such loan shall not be evidenced by a promissory note or other instrument, unless the single original of such note or other instrument is delivered to Agent to hold as part of the Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Agent may require, and (iii) as of the date of the making of such loan and after giving effect thereto, the Borrower making such loan shall be Solvent;
(g) the formation or acquisition by a Borrower or Guarantor after the date hereof of one or more Subsidiaries incorporated or organized under the laws of any State of the United States of America; provided, that: (i) such Borrower or Guarantor (as the case may be) shall cause any such Subsidiary to execute and deliver to Agent, in form and substance satisfactory to Agent, (A) an absolute and unconditional guarantee of payment of the Obligations, (B) a security agreement granting to Agent for itself and the ratable benefit of Lenders a first security interest and lien (except as otherwise consented to in writing by Agent) upon property of any such Subsidiary constituting the same items or types of property set forth in Section 5 hereof, (C) related UCC financing statements, and (D) such other agreements, documents and instruments as Agent may require, including, but not limited to, supplements and amendments hereto and other loan agreements or instruments evidencing Indebtedness of such new Subsidiaries to Agent, (ii) the Subsidiary formed or acquired shall be engaged in a business related, ancillary or complimentary to the businesses of Borrowers as conducted on the date hereof, (iii) in the case of loans and advances, the original of any promissory note or other instrument evidencing the Indebtedness arising pursuant to such loans and advances shall be delivered, or caused to be delivered, to Agent, at Agent’s option, together with an appropriate endorsement and with full recourse to the payee thereof, and (iv) Agent shall have received (A) not less than ten (10) Business Days’ prior written notice of the formation or acquisition of any such Subsidiary and such information with respect thereto as Agent may request, and (B) true, correct and complete copies of all agreements, documents and instruments relating thereto and (v) as of the date of any such loan, advance, capital contribution or other investment or payment, no Default or Event of Default shall exist or have occurred and be continuing;
(h) the existing equity investments of Borrowers, Guarantors and their Subsidiaries as of the date hereof in their respective Subsidiaries, provided, that, Borrowers and Guarantors shall have no further obligations or liabilities to make any capital contributions or other additional investments or other payments to or in or for the benefit of any of such Subsidiaries;
(i) stock or obligations issued to the Borrowers any Borrower, Guarantor or any of their respective Subsidiaries by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to the Borrowers any Borrower or Subsidiary in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person; provided, that, prior to an Event of Default, if the amount or value thereof is greater than $100,000, or the amount or value of all of such stock and instruments in the aggregate is greater than $250,000, and after an Event of Default, regardless of the amount or value thereof, the original of any such stock or instrument evidencing such obligations to a Borrower, Guarantor or any Subsidiary shall be promptly delivered to the LenderAgent, upon Agent’s request, together with such stock power, assignment or endorsement by the Borrowers such Borrower or as the Lender Agent may request;
(dj) obligations of account debtors to the Borrowers any Borrower, Guarantor or Subsidiaries arising from Accounts which are past due evidenced by provided, that, such Borrower, Guarantor or Subsidiary, as the case may be, uses its best efforts to evidence such obligations, to the extent such obligations exceed $100,000, with a promissory note made by such account debtor payable to such Borrower or Subsidiary, as the Borrowerscase may be; provided, that, prior to an Event of Default, if the amount of such note is greater than $100,000, or the amount of all of such notes in the aggregate is greater than $250,000, and after an Event of Default, regardless of the amount thereof, promptly upon the receipt of the original of any such promissory note by the Borrowersa Borrower to a Borrower, Guarantor or any Subsidiary such promissory note shall be endorsed to the order of the Lender Agent by the Borrowers such Borrower to a Borrower, Guarantor or any Subsidiary and promptly delivered to the Lender Agent as so endorsed; or;
(ek) loans or advances by any Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $1,000,000 in the aggregate at any time outstanding in the ordinary course of such Borrower’s, Guarantor’s or Subsidiary’s business for reasonable and necessary work-related travel and other ordinary business expenses to be incurred by such employees in connection with their employment with such Borrower, Guarantor or Subsidiary, as the case may be;
(l) any investments of any Borrower, Guarantor or any of their respective Subsidiaries in (i) Hedge Agreements permitted under Section 9.9(r) hereof and (ii) swap agreements, cap agreements, collar agreements, exchange agreements futures or forward hedging contracts or similar contractual arrangements intended to protect a Person against fluctuations in interest rates, currency exchange rates or the price of raw materials and other chemical products used or produced in the business of any Borrower; provided, that, with respect to the arrangements described in clause (ii) hereof, such arrangements are with banks or other financial institutions that have combined capital and surplus and undivided profits of not less than $250,000,000 and are not for speculative purposes and are unsecured;
(m) loans by any Subsidiary of Pep Boys (other than a Borrower or Guarantor) to any other Subsidiary of Pep Boys (other than a Borrower or Guarantor);
(n) the existing loans, advances and guarantees set forth on Schedule 9.10 to the Information Certificate, provided, that, as to such loans, advances and guarantees, (i) Borrowers, Guarantors, or their respective Subsidiaries, as the case may be, shall not, directly or indirectly, (A) amend, modify, alter or change in any material respect the terms of such loans, advances or guarantees or any agreement, document or instrument related thereto, except, that, such Borrower, Guarantor or Subsidiary, as the case may be, after prior written notice to Agent, amend, modify, alter or change the terms thereof so as to extend the maturity thereof or defer the timing of any payments in respect thereof, or to forgive or cancel a portion of such indebtedness (other than pursuant to payments thereof), or to release any liens or security interests in any assets of Borrower which secure such indebtedness (if any), or to reduce the rate or any fees in connection therewith, or to make any covenants contained therein less restrictive or burdensome as to Borrower or otherwise more favorable to Borrower, Guarantor or Subsidiary, as the case may be, (as determined in good faith by Agent), or (B) as to such guarantees, redeem, retire, defease, purchase or otherwise acquire such guarantee or set aside or otherwise deposit or invest any sums for such purpose (except as expressly required pursuant to the terms thereof or pursuant to regularly scheduled payments permitted herein) and (ii) Borrowers and Guarantors shall furnish to Agent all notices or demands in connection with such loans, advances or guarantees either received by a Borrower, Guarantor or Subsidiary on its behalf, promptly after the receipt thereof, or sent by a Borrower, Guarantor or Subsidiary on its behalf, concurrently with the sending thereof, as the case may be;
(o) investments (including, without limitation, any loan, advance, capital contribution or other investment or payment) in joint ventures or other Persons (each a “Business Enterprise”) by Pep Boys for the purpose of development, creation and operation of an internet business; provided, that: (i) each such Business Enterprise is entered into with a Person who is not an Affiliate, (ii) the Business Enterprise shall be engaged in a business related, ancillary or complimentary to the businesses of Borrowers as conducted on the date hereof, (iii) Agent shall have received (A) (1) in the event the initial investment (whether characterized by loans, capital contributions, letters of credit or otherwise) in the Business Enterprise is not in excess of $5,000,000, not more than two (2) Business Days’ written notice after the date of such investment, and such other information with respect thereto as Agent may reasonably request, or (2) in the event such initial investment is to be equal to or greater than $5,000,000, not less than ten (10) Business Days prior written notice of such investment in such Business Enterprise, and such other information with respect thereto as Agent may reasonably request and (B) true, correct and complete copies of all agreements, documents and instruments relating thereto, (iv) in the case of loans and advances, the original of any promissory note or other instrument evidencing the Indebtedness arising pursuant to such loans and advances shall be delivered, or caused to be delivered, to Agent, at Agent’s option, together with an appropriate endorsement and with full recourse to the payee thereof, (v) so long as a Cash Dominion Event is continuing, in no event shall the total amount of investments made by Pep Boys in all such Business Enterprises be in excess of $15,000,000 in each fiscal year, (vi) the total amount of all such investments in such Business Enterprises shall not exceed $50,000,000 in the aggregate at any time, and (vii) Agent shall receive a monthly report in form and substance satisfactory to Agent of the amount of such investment and such other information with respect thereto as Agent may reasonably request and (viii) as of the date of any such loan, advance, capital contribution or other investment or payment, no Default or Event of Default shall exist or have occurred and be continuing;
(p) the existing loans by Pep Boys to the Flexi-Trust, pursuant to the terms and conditions of the Flexi-Trust Agreement in effect on the date hereof;
(q) repurchases and redemptions of Capital Stock permitted pursuant to Section 9.11(c); and
(r) the loans and advances set forth on Schedule 8.14 9.10 to the Perfection Certificate which are not permitted by other provisions of Section 8.14 aboveInformation Certificate; provided, that, as to such loans and advances, (i) the Borrowers and Guarantors shall not, directly or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto; thereto and (ii) the Borrowers and Guarantors shall furnish to the Lender Agent all notices or demands in connection with such loans and advances either received by the Borrowers any Borrower or Guarantor or on their its behalf, promptly after the receipt thereof, or sent by the Borrowers any Borrower or Guarantor or on their its behalf, concurrently with the sending thereof, as the case may be.
Appears in 1 contract
Samples: Loan and Security Agreement (Pep Boys Manny Moe & Jack)
Loans, Investments, Etc. The Borrowers Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary immediately prior to such merger) any Capital Stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advance money or property to any personadvances to, or invest in (by capital contributionmake or permit to exist any investment or any other interest in, dividend or otherwise) any other Person, or purchase or repurchase the Capital Stock otherwise acquire (in one transaction or Indebtedness a series of transactions) any assets of any other Person constituting a business unit or all or a substantial part of the assets or property of any personother Person (whether through purchase of assets, merger or otherwise), or form or acquire any Subsidiaries, or agree to do any of the foregoingforegoing (each of the foregoing an “Investment”), except:
(a) the endorsement of instruments for collection or deposit in the ordinary course of business;
(b) investments Investments in cash or Cash Equivalents, provided, that, as to such Investments by any Borrower or Guarantor, the terms and conditions of Section 5.2(d) and (e) hereof shall have been satisfied with respect to the deposit account, investment account or other account in which such cash or Cash Equivalents are held;
(c) the existing equity investments of each Borrower and Guarantor as of the date hereof in its Subsidiaries, provided, that, no Borrower or Guarantor shall have any further obligations or liabilities to make any capital contributions or other additional investments or other payments to or in or for the benefit of any of such Subsidiaries;
(d) loans and advances by any Borrower or Guarantor to employees of such Borrower or Guarantor not to exceed the principal amount of $100,000 in the aggregate at any time outstanding in the ordinary course of business;
(e) stock or obligations issued to the Borrowers any Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to the Borrowers such Borrower or Guarantor in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person; provided, that, the original of any such stock or instrument evidencing such obligations shall be promptly delivered to the Lender, together with such stock power, assignment or endorsement by the Borrowers as the Lender may request;
(df) obligations of account debtors to the Borrowers any Borrower or Guarantor arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to such Borrower or Guarantor;
(g) loans by a Borrower or Guarantor to another Borrower or Guarantor after the Borrowers; date hereof;
(h) loans by a Borrower or Guarantor to a Foreign Subsidiary after the date hereof not to exceed the principal amount of $30,000,000 in the aggregate at any time outstanding, provided, that, promptly upon the receipt as of the original date of any such loan and after giving effect thereto, (i) Agent shall have received not less than two (2) Business Days’ prior written notice of the intention of Borrowers or Guarantors to make such loan, (ii) the Excess Availability for each of the immediately preceding thirty (30) consecutive days prior to the date of any such loan shall have been not less than $15,000,000 and as of the date of any such loan and after giving effect thereto, the Excess Availability shall be not less than $15,000,000 (iii) as of the date of any such loan and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing, and (iv) the Indebtedness arising pursuant to any such loan shall not be evidenced by a promissory note by or other instrument unless the Borrowers, single original of such promissory note or other instrument shall be endorsed to the order of the Lender by the Borrowers and have been promptly delivered to Agent to hold as part of the Lender Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as so endorsed; orAgent may require;
(ei) Investments by any Foreign Subsidiary after the date hereof to or in any Person, provided, that, (i) in no event shall any Borrower or Guarantor make, or be required to make, any payment or incur any obligation or liability (contingent or otherwise) in connection with any such Investment, and (ii) in the case of any Investment constituting a loan or advance to a Borrower or Guarantor (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Agent and Lenders to receive the prior final payment and satisfaction in full of all of the Obligations (other than unasserted contingent indemnity obligations) on terms and conditions acceptable to Agent, (B) promptly upon Agent’s request, Agent shall have received a subordination agreement, in form and substance reasonably satisfactory to Agent, providing for the terms of the subordination in right of payment of such Indebtedness of such Borrower to the prior final payment and satisfaction in full of all of the Obligations (other than unasserted contingent indemnity obligations), duly authorized, executed and delivered by such Guarantor and such Borrower, and (C) such Borrower shall not, directly or indirectly make, or be required to make, any payments in respect of such Indebtedness prior to the end of the then current term of this Agreement;
(j) (i) Permitted Acquisitions and (ii) Permitted Joint Ventures; and
(k) the loans and advances and other Investments set forth on Schedule 8.14 9.10 to the Perfection Information Certificate which are not otherwise permitted by the other provisions clauses of this Section 8.14 above9.10; provided, that, as to such loans and advancesadvances and other Investments, (i) the Borrowers and Guarantors shall not, directly or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto; thereto in any manner that is adverse in any material respect to the interests of any Borrower, Guarantor, Lender or Agent and (ii) the Borrowers and Guarantors shall furnish to the Lender Agent all notices or demands in connection with such loans and advances and other Investments either received by the Borrowers any Borrower or Guarantor or on their its behalf, promptly after the receipt thereof, or sent by the Borrowers any Borrower or Guarantor or on their its behalf, concurrently with the sending thereof, as the case may be.
Appears in 1 contract
Loans, Investments, Etc. The Borrowers shall notNo Borrower shall, and shall not nor permit any Subsidiary of its Subsidiaries (other than GIFL) to, directly or indirectly, make make, or suffer or permit to exist, any loans or advance money or property to any personPerson, or invest any investment in (by capital contribution, dividend or otherwise) or purchase or repurchase the Capital Stock or Indebtedness or all or a substantial part of the assets or property of any personPerson, or form or acquire any Subsidiaries, or agree to do any of the foregoing, except:
(a) the endorsement of instruments for collection or deposit in the ordinary course of business;
(b) investments in cash or Cash Equivalents, provided, that, (i) no Revolving Loans are then outstanding and (ii) the terms and conditions of Section 5.2 hereof shall have been satisfied with respect to the deposit account or investment account in which such cash or Cash Equivalents are held;
(c) the existing equity investments of such Borrower as of the date hereof in its Subsidiaries, provided, that, such Borrower shall have no obligation to make any other investment in, or loans to, or other payments in respect of, any such Subsidiaries;
(d) any transaction permitted by Section 9.7 hereof;
(e) loans or advances to, or investments in, or purchases or repurchases of the stock, assets or Indebtedness of another Borrower or GL UK or guaranties or the assumption of letter of credit obligations for the benefit of another Borrower or GL UK; provided that, (i) no Default or Event of Default exists or has occurred and is continuing immediately prior to and after giving effect to any such loan, advance, investment, purchase, repurchase, guaranty or assumption of letter of credit obligation and (ii) such loans, advances, investments, purchases or repurchases do not violate the capitalization requirements of any Borrower, under applicable laws;
(f) loans or advances to GIFL or GLC; provided that, (i) no Default or Event of Default exists or has occurred and is continuing immediately prior to and after giving effect to such loans or advances, (ii) such loans or advances do not violate the capitalization requirements of any Borrower, under applicable laws, (iii) all the proceeds of such loans or advances are immediately loaned or advanced by GIFL or GLC, as the case may be, to GL UK and (iv) the aggregate amount of such loans or advances made to GIFL or GLC by any Borrower which shall not in turn have been loaned or advanced by the recipient to GL UK shall not at any time exceed One Million Five Hundred Thousand Dollars ($1,500,000);
(g) loans or advances to GLC (i) for taxes due to be paid by GLC, but only in an amount equal to the portion attributable to Borrowers; (ii) for general and administrative expenses of GLC, such amount not to exceed Five Million Dollars ($5,000,000), in any fiscal year or Three Million Dollars ($3,000,000) in any fiscal quarter; (iii) for other general operating expenses of GLC, in an amount not to exceed Two Million Dollars ($2,000,000) in any fiscal year; and (iv) subject to the restrictions set forth in Section 9.11(b), to enable GLC to pay to the Permitted Holders or their Affiliates the management fees provided for in Section 9.11(b) hereof;
(h) stock or obligations issued to the Borrowers any Borrower by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to the Borrowers such Borrower in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person; provided, that, the original of any such stock or instrument evidencing such obligations shall be promptly delivered to the Lender, upon Lender’s request, together with such stock power, assignment or endorsement by the Borrowers such Borrower as the Lender may request;
(di) loans or advances to, or guaranties or the assumption of letter of credit obligations for the benefit of, GLC or a Subsidiary of GLC (other than a Borrower or GL UK) not to exceed Five Million Dollars ($5,000,000) in the aggregate, for all Borrowers, at any one time outstanding; provided that, (i) no Default or Event of Default has occurred and is continuing immediately prior to and after giving effect to such loans, advances, guaranties or assumption of letter of credit obligations, (ii) such loans, advances, guaranties or assumption of letter of credit obligations do not violate the capitalization requirements of any Borrower under applicable laws, (iii) such loans or advances are evidences by a promissory note or notes, the rights to which have been collateral pledged and delivered, if so requested, to Lender and (iv) such loans advances, guaranties or assumption of letter of credit obligations are made in the ordinary course of Borrowers’ business;
(j) obligations of account debtors to the Borrowers any Borrower arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to the Borrowerssuch Borrower; provided, that, promptly upon the receipt of the original of any such promissory note by the Borrowerssuch Borrower, such promissory note shall be endorsed to the order of the Lender by the Borrowers such Borrower and promptly delivered to the Lender as so endorsed; orand
(ek) the loans and advances set forth on Schedule 8.14 to the Perfection Certificate which are not permitted by other provisions of Section 8.14 above9.10 hereto; provided, that, as to such loans and advances, (i) the Borrowers shall notno Borrower shall, directly or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto; thereto and (ii) the Borrowers each Borrower shall furnish to the Lender all notices or demands in connection with such loans and advances either received by the Borrowers such Borrower or on their its behalf, promptly after the receipt thereof, or sent by the Borrowers such Borrower or on their its behalf, concurrently with the sending thereof, as the case may be.
Appears in 1 contract
Loans, Investments, Etc. The Borrowers Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly, make any loans or advance money or property to any person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the Capital Stock or Indebtedness or all or a substantial part of the assets or property of any person, or form or acquire any Subsidiaries, or agree to do any of the foregoing, except:
(a) loans of money or property (other than Collateral) after the endorsement of instruments for collection date hereof by any Borrower or deposit in the ordinary course of business;
(b) investments in cash or Cash Equivalents;
(c) stock or obligations issued Guarantor to the Borrowers by any Person (other than an existing Affiliate of any Borrower or Guarantor as of the date hereof) or investment after the date hereof by any Borrower or Guarantor by capital contribution in any Person (other than an existing Affiliate of any Borrower or Guarantor as of the date hereof), or the representative formation or acquisition after the date hereof by any Borrower of any direct wholly-owned Subsidiary of such Person) in respect of Indebtedness of such Person owing to Borrower after the Borrowers in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Persondate hereof; provided, that, as to any such loans or investments, or the original formation or acquisition of any such Subsidiary, each of the following conditions is satisfied as determined by Lender:
(i) as of the date of any such loan or investment, or the formation or acquisition of such Subsidiary or any payments in connection with the formation or acquisition of such Subsidiary, and in each case after giving effect thereto, no Default or Event of Default shall exist or have occurred,
(ii) as of the date of any such loan or investment, or the formation or acquisition of such Subsidiary or any payments in connection with the formation or acquisition of such Subsidiary, and in each case after giving effect thereto, the aggregate amount of the Excess Availability of Borrowers shall have been not less than $7,500,000 for each of the immediately preceding ten (10) consecutive days and as of the date of any such loan or investment or formation or acquisition or any payment in connection therewith and after giving effect thereto, the aggregate amount of the Excess Availability of Borrowers shall be not less than $7,500,000,
(iii) in no event shall the proceeds of the Loans or the loans under any Intercompany Credit Facility be used to make any payment in connection with any such loan or investment, or the formation or acquisition of such Subsidiary, unless as of the date thereof, the P&O Unrestricted Cash shall be less than $10,000,000,
(iv) the Person receiving such loan or investment or the Subsidiary formed or acquired, as the case may be, shall be engaged in a business related, ancillary or complimentary to the business of Borrowers permitted in this Agreement,
(v) in the case of an investment by capital contribution, at Lender's option, the original stock certificate or other instrument evidencing such obligations capital contribution (or such other evidence as may be issued in the case of a limited liability company) shall be promptly delivered to the Lender, together with such stock power, assignment or endorsement as Lender may request, and promptly upon Lender's request, the Borrower or Guarantor making such investment shall execute and deliver to Lender a pledge and security agreement, in form and substance satisfactory to Lender, granting to Lender a first priority pledge of, security interest in and lien upon all of the issued and outstanding shares of such stock or other instrument or interest (and in the case of a limited liability company take such other actions as Lender shall require with respect to Lender's security interests therein),
(vi) in the case of loans of money or property, the original of any promissory note or other instrument evidencing the Indebtedness arising pursuant to such loans shall be delivered, or caused to be delivered, to Lender, at Lender's option, together with an appropriate endorsement, in form and substance satisfactory to Lender,
(vii) in the case of the formation or acquisition by a Borrower of any Subsidiary, as to any such Subsidiary, (A) the Borrowers Borrower forming such Subsidiary shall cause any such Subsidiary to execute and deliver to Lender, the following (each in form and substance satisfactory to Lender), (1) an absolute and unconditional guarantee of payment of the Obligations, (2) a security agreement granting to Lender a first security interest and lien (except as otherwise consented to in writing by Lender) upon all of the assets of any such Subsidiary (other than the real property owned by such Subsidiary), and (3) such other agreements, documents and instruments as Lender may require, including, but not limited to, supplements and amendments hereto and other loan agreements or instruments evidencing Indebtedness of such new Subsidiary to Lender and (B) the Borrower forming such Subsidiary shall (1) execute and deliver to Lender, a pledge and security agreement, in form and substance satisfactory to Lender, granting to Lender a first pledge of and lien on all of the issued and outstanding shares of Capital Stock of any such Subsidiary, and (C) deliver the original stock certificates evidencing such shares of Capital Stock (or such other evidence as may be issued in the case of a limited liability company), together with stock powers with respect thereto duly executed in blank (or the equivalent thereof in the case of a limited liability company in which such interests are certificated, or otherwise take such actions as Lender shall require with respect to Lender's security interests therein),
(viii) Lender shall have received (A) not less than ten (10) Business Days' prior written notice thereof setting forth in reasonable detail the nature and terms thereof, (B) true, correct and complete copies of all agreements, documents and instruments relating thereto and (C) such other information with respect thereto as Lender may request;
(db) obligations loans of account debtors money or property (other than Collateral) after the date hereof by any Borrower or Guarantor to the Borrowers arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to the Borrowers; provided, that, promptly upon the receipt an existing Affiliate of any Borrower or Guarantor as of the original date hereof (other than a Borrower or Guarantor) or investment after the date hereof by any Borrower or Guarantor in an existing Affiliate of any such promissory note by the Borrowers, such promissory note shall be endorsed to the order Borrower or Guarantor as of the Lender by the Borrowers and promptly delivered to the Lender as so endorsed; or
date hereof (e) the loans and advances set forth on Schedule 8.14 to the Perfection Certificate which are not permitted by other provisions of Section 8.14 abovethan a Borrower or Guarantor); provided, that, as to any such loans and advancesor investments, each of the following conditions is satisfied as determined by Lender:
(i) as of the date of such loan or investment and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any such loan or investment and after giving effect thereto, the aggregate amount of the Excess Availability of Borrowers shall nothave been not less than $7,500,000 for each of the immediately preceding ten (10) consecutive days and the aggregate amount of the Excess Availability of Borrowers shall be not less than $7,500,000,
(iii) in no event shall the proceeds of the Loans or the loans under any Intercompany Credit Facility be used to make any such loan or investment, directly unless as of the date thereof, the P&O Unrestricted Cash shall be less than $10,000,000,
(iv) in the case of an investment by capital contribution, at Lender's option, the original stock certificate or indirectlyother instrument evidencing such capital contribution (or such other evidence as may be issued in the case of a limited liability company) shall be promptly delivered to Lender, amendtogether with such stock power, modifyassignment or endorsement as Lender may request, alter and promptly upon Lender's request, the Borrower or change Guarantor making such investment shall execute and deliver to Lender a pledge and security agreement, in form and substance satisfactory to Lender, granting to Lender a first priority pledge of, security interest in and lien upon all of the issued and outstanding shares of such stock or other instrument or interest (and in the case of a limited liability company take such other actions as Lender shall require with respect to Lender's security interests therein),
(v) in the case of loans of money or property, the original of any promissory note or other instrument evidencing the Indebtedness arising pursuant to such loans shall be delivered, or caused to be delivered, to Lender, at Lender's option, together with an appropriate endorsement, in form and substance satisfactory to Lender,
(vi) Lender shall have received (A) not less than ten (10) Business Days' prior written notice thereof setting forth in reasonable detail the nature and terms thereof, (B) true, correct and complete copies of all agreements, documents and instruments relating thereto and (C) such other information with respect thereto as Lender may request, and
(vii) within forty-five (45) days after the end of each fiscal month, Borrowers and Guarantors shall provide to Lender a report in form and substance reasonably satisfactory to Lender of the outstanding amount of such loans and advances investments as of the last day of the immediately preceding month and indicating any loans or investments made and payments received during the immediately preceding month;
(c) the purchase by any Borrower of all or a substantial part of the assets or property of any Person located in the United States (other than Capital Stock), provided, that, each of the following conditions is satisfied as determined by Lender in good faith;
(i) as of the date of such purchase and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any payment in connection with such acquisition and after giving effect thereto, the aggregate amount of the Excess Availability of Borrowers shall have been not less than $7,500,000 for each of the immediately preceding ten (10) consecutive days and the aggregate amount of the Excess Availability of Borrowers shall be not less than $7,500,000,
(iii) in no event shall the proceeds of the Loans or the loans under any Intercompany Credit Facility be used to make any payment in connection with any such loan or investment, unless as of the date thereof, the P&O Unrestricted Cash shall be less than $10,000,000,
(iv) Lender shall have received not less than ten (10) Business Days' prior written notice of the proposed acquisition and such information with respect thereto as Lender may request, including (A) the proposed date and amount of the acquisition, (B) a list and description of the assets to be acquired, and (C) the total purchase price for the assets to be purchased (and the terms of payment of such purchase price),
(v) promptly upon Lender's request, the Borrower purchasing such assets shall deliver, or cause to be delivered to Lender, true, correct and complete copies of all agreements, documents and instruments relating to such acquisition,
(vi) the assets and properties being acquired by any Borrower shall be substantially consistent with, and related to, the business of such Borrower permitted in this Agreement,
(vii) the assets acquired by any Borrower shall be free and clear of any security interest, mortgage, pledge, lien, charge or other encumbrance (other than those permitted in this Agreement) and Lender shall have received evidence satisfactory to it of the same,
(viii) the acquisition by any Borrower of such assets shall not violate any law or regulation or any order or decree of any court or Governmental Authority in any material respect and shall not and will not conflict with or result in the breach of, or constitute a default in any respect under, any material agreement, document or instrument related thereto; to which such Borrower or any Affiliate is a party or may be bound, or result in the creation or imposition of, or the obligation to grant, any lien, charge or encumbrance upon any of the property of such Borrower or any Affiliate or violate any provision of the certificate of incorporation or by-laws of such Borrower,
(ix) such purchase shall be on commercially reasonable prices and terms and in a bona fide arms' length transaction with a person that is not an Affiliate of any Borrower or Guarantor,
(x) no Borrower or Guarantor shall become obligated with respect to any Indebtedness, nor any of its property become subject to any security interest or lien, pursuant to such acquisition unless such Borrower or Guarantor could incur such Indebtedness or create such security interest or lien hereunder or under the other Financing Agreements,
(xi) Lender shall have received, in form and substance satisfactory to Lender, (A) evidence that Lender has valid and perfected security interests in and liens upon all purchased assets to the extent such assets constitute Collateral hereunder, (B) UCC financing statements, (C) all Collateral Access Agreements and other consents, waivers, acknowledgments and other agreements from third persons which Lender may reasonably deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the assets purchased, (D) the agreement of the seller consenting to the collateral assignment by the Borrower purchasing such assets of all rights and remedies and claims for damages of such Borrower relating to the Collateral (including, without limitation, any bulk sales indemnification) under the agreements, documents and instruments relating to such acquisition and (iiE) the Borrowers such other agreements, documents and instruments as Lender may request in connection therewith, 77
(xii) in no event shall furnish any Accounts or Inventory so acquired by any Borrower pursuant to such acquisition be deemed Eligible Accounts or Eligible Inventory unless and until Lender shall have conducted a field examination with respect thereto (and at Lender's option, at Borrowers' expense, obtained an appraisal of such Inventory by an appraiser acceptable to Lender and in form, scope and methodology to Lender and addressed to Lender and upon which Lender is expressly permitted to rely, which appraisal shall be in addition to any appraisals which Lender may obtain pursuant to its rights under Section 7.3 hereof) and then only to the extent the criteria for Eligible Accounts and Eligible Inventory set forth herein are satisfied with respect thereto in accordance with this Agreement (or such other or additional criteria as Lender may, at its option, establish with respect thereto in accordance with this Agreement and subject to such Reserves as Lender may establish in accordance with this Agreement), and upon the request of Lender, the Accounts and Inventory acquired by such Borrower pursuant to such acquisition shall at all notices or demands times after such acquisition be separately identified and reported to Lender in connection with such loans and advances either received by the Borrowers or on their behalf, promptly after the receipt thereof, or sent by the Borrowers or on their behalf, concurrently with the sending thereof, as the case may be.a manner satisfactory to Lender;
Appears in 1 contract
Loans, Investments, Etc. The Borrowers Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary immediately prior to such merger) any Capital Stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advance money or property to any personadvances to, or invest in (by capital contributionmake or permit to exist any investment or any other interest in, dividend or otherwise) any other Person, or purchase or repurchase the Capital Stock otherwise acquire (in one transaction or Indebtedness a series of transactions) any assets of any other Person constituting a business unit or all or a substantial part of the assets or property of any personother Person (whether through purchase of assets, merger or otherwise), or form or acquire any Subsidiaries, or agree to do any of the foregoingforegoing (each of the foregoing an "Investment"), except:
(a) the endorsement of instruments for collection or deposit in the ordinary course of businessPermitted Investments;
(b) investments in cash or Cash EquivalentsIntentionally Omitted;
(c) stock Investments by a Borrower, Guarantor or obligations issued to the Borrowers other Subsidiary of Parent in a Borrower or by any Person a Guarantor or other Subsidiary of Parent (or the representative of such Personother than a Borrower) in respect of Indebtedness of such Person owing to another Guarantor, in each case after the Borrowers in connection with the insolvencydate hereof, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person; provided, that, to the original extent that such Investment gives rise to any Indebtedness, such Indebtedness is permitted hereunder and to the extent that such Investment gives rise to the issuance of any shares of Capital Stock, such stock or instrument evidencing such obligations shall be promptly delivered to the Lender, together with such stock power, assignment or endorsement by the Borrowers as the Lender may requestissuance is permitted hereunder;
(d) obligations loans by a Borrower or Guarantor to another Borrower or Guarantor after the date hereof, provided, that,
(i) as to all of account debtors such loans, (A) within thirty (30) days after the end of each fiscal month, Borrowers shall provide to Agent a report in form and substance satisfactory to Agent of the Borrowers outstanding amount of such loans as of the last day of the immediately preceding month and indicating any loans made and payments received during the immediately preceding month, (B) the Indebtedness arising from Accounts which are past due pursuant to any such loan shall not be evidenced by a promissory note made by or other instrument, unless the single original of such account debtor payable note or other instrument (and any amendment or modification thereto) is promptly delivered to Agent (or if the Borrowers; providedWorking Capital Loan Agreement has not been terminated, thatto Working Capital Agent, promptly upon the receipt with copies to Agent) to hold as part of the original Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Agent, or Working Capital Agent, as applicable, may require,
(ii) as to loans by a Borrower to a Guarantor or by a Guarantor to another Guarantor, as of the date of any such promissory note loan and after giving effect thereto, as of the date of any such loan and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing,
(iii) as to loans by a Guarantor to a Borrower, (A) the Borrowers, Indebtedness arising pursuant to such promissory note loan shall be endorsed subject to, and subordinate in right of payment to, the right of Agent and Lenders to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Agent, (B) promptly upon Agent's request, Agent shall have received a subordination agreement, in form and substance satisfactory to Agent, providing for the terms of the subordination in right of payment of such Indebtedness of such Borrower to the order prior final payment and satisfaction in full of all of the Lender Obligations, duly authorized, executed and delivered by the Borrowers such Guarantor and promptly delivered such Borrower, and (C) such Borrower shall not, directly or indirectly make, or be required to make, any payments in respect of such Indebtedness prior to the Lender end of the then current term of this Agreement, except that Parent and Merchandising may make payments of interest to Resources on a quarterly basis in respect of intercompany loans by Resources to Parent or Merchandising, as the case may be, so endorsedlong as Resources immediately applies all of the proceeds of such interest payments to make an intercompany loan in cash to Parent or Merchandising in accordance with the terms of Section 9.10(d) hereof; orand
(iv) the aggregate outstanding principal amount of all loans made by Borrowers to Guarantors shall not exceed $100,000 at any time; and
(e) the loans and advances set forth on Schedule 8.14 9.10 to the Perfection Information Certificate which are not permitted by the other provisions of Section 8.14 9.10 above; provided, that, :
(i) as to all such loans and advances, (iA) the Borrowers and Guarantors shall not, directly or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto; , except that Borrowers and Guarantors may amend any such agreement, document or instrument to increase the principal amount of any loans made by a Guarantor to a Borrower so long as the single original of any amendment to any note or other instrument shall be promptly delivered to Agent to hold as part of the Collateral with such endorsement and/or assignment by the payee of such note or other instrument as Agent may require, and (iiB) the Borrowers and Guarantors shall furnish to the Lender Agent all notices or demands in connection with such loans and advances either received by the Borrowers any Borrower or Guarantor or on their its behalf, promptly after the receipt thereof, or sent by the Borrowers any Borrower or Guarantor or on their its behalf, concurrently with the sending thereof, as the case may be; and
(ii) as to loans by a Guarantor to a Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Agent and Lenders to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Agent, (B) Agent shall have received a subordination agreement, in form and substance satisfactory to Agent, providing for the terms of the subordination in right of payment of such Indebtedness of such Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and such Borrower, and (C) such Borrower shall not, directly or indirectly make, or be required to make, any payments in respect of such Indebtedness prior to the end of the then current term of this Agreement, except that Parent and Merchandising may make payments of interest to Resources on a quarterly basis in respect of intercompany loans by Resources to Parent or Merchandising, as the case may be, so long as Resources immediately applies all of the proceeds of such interest payments to make an intercompany loan in cash to Parent or Merchandising in accordance with the terms of Section 9.10(d) hereof.
Appears in 1 contract
Loans, Investments, Etc. The Borrowers Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary immediately prior to such merger) any Capital Stock, evidences of Indebtedness or other Securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advance money or property to any personadvances to, or invest in (by capital contributionmake or permit to exist any investment or any other interest in, dividend or otherwise) any other Person, or purchase or repurchase the Capital Stock otherwise acquire (in one transaction or Indebtedness a series of transactions) any assets of any other Person constituting a business unit or all or a substantial part of the assets or property of any personother Person (whether through purchase of assets, merger or otherwise), or form or acquire any Subsidiaries, or agree to do any of the foregoingforegoing (each of the foregoing an “Investment”), except:
(a) the endorsement of instruments for collection or deposit in the ordinary course of business;
(b) investments Investments in cash or Cash Equivalents; provided, that, the terms and conditions of Section 5.2 and Section 6.3 hereof shall have been satisfied with respect to the Deposit Account, investment account or other account in which such cash or Cash Equivalents are held;
(ci) the existing equity Investments of each Borrower and Guarantor as of the Closing Date in its Subsidiaries, provided, that, no Borrower or Guarantor shall have any further obligations or liabilities to make any capital contributions or other additional investments or other payments to or in or for the benefit of any of such Subsidiaries;
(ii) a Borrower or Guarantor may form a Subsidiary, provided, that,
(A) Agent shall have received promptly upon any such formation or acquisition all of the agreements, documents and instruments required by the terms of Sections 5.2 and 9.23 hereof,
(B) as of the date of the organization, formation or acquisition of any such Subsidiary and immediately after giving effect thereto, no Event of Default shall have occurred and be continuing, and
(C) in the event that Administrative Borrower requests that any such new Subsidiary that is directly or indirectly wholly owned by Parent be designated a Borrower hereunder, in no event shall any Inventory, Accounts or Credit Card Receivables of such Subsidiary be deemed Eligible Inventory, Eligible Accounts or Eligible Credit Card Receivables until Agent shall have conducted a field examination and appraisal with respect to such assets and the results of such field examination, appraisal, and other due diligence shall be reasonably satisfactory to Agent, and then only to the extent the criteria for Eligible Inventory, Eligible Accounts and Eligible Credit Card Receivables set forth herein are satisfied with respect thereto (as such criteria may be reasonably modified by Agent to reflect the results of Agent’s field examination and appraisal including any separate advance percentage with respect to such Credit Card Receivables as Agent may reasonably determine); and
(D) such Subsidiary shall be an operating company that engages in a Permitted Business or an operating company or a holding company formed to make a Permitted Acquisition.
(d) Investments by a Borrower or Guarantor in another Borrower or Guarantor, in each case after the date hereof, provided, that, (i) to the extent that such Investment gives rise to any Indebtedness, such Indebtedness is permitted hereunder, and (ii) to the extent that such Investment gives rise to the issuance of any shares of Capital Stock, such issuance is permitted hereunder;
(e) loans and advances by any Borrower, Guarantor or Subsidiary to employees of such Borrower or Guarantor not to exceed the principal amount of $500,000 in the aggregate at any time outstanding;
(f) stock or obligations issued to the Borrowers any Borrower, Guarantor or Subsidiary by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to the Borrowers such Borrower or Guarantor in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person; provided, that, the original of any such stock or instrument evidencing such obligations shall be promptly delivered to the LenderAgent, upon Agent’s request, together with such stock power, assignment or endorsement by the Borrowers such Borrower or Guarantor as the Lender Agent may request;
(dg) obligations of account debtors Account Debtors to the Borrowers any Borrower, Guarantor or Subsidiary arising from Accounts which are past due whether or not evidenced by a promissory note made by such account debtor Account Debtor payable to the Borrowerssuch Borrower or Guarantor; provided, that, promptly upon the receipt of the original of any such promissory note by the Borrowerssuch Borrower or Guarantor, such promissory note shall be endorsed to the order of the Lender Agent by the Borrowers such Borrower or Guarantor and promptly delivered to the Lender Agent as so endorsed; or;
(eh) loans by a Borrower or Guarantor or Subsidiary to another Borrower or Guarantor after the date hereof, provided, that,
(i) as to all of such loans, (A) the Indebtedness arising pursuant to any such loan shall not be evidenced by a promissory note or other instrument, unless the single original of such note or other instrument is promptly delivered to Agent upon its request to hold as part of the Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Agent may require, (B) as of the date of any such loan and after giving effect thereto, the Borrower or Guarantor making such loan shall be Solvent, and (C) as of the date of any such loan and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(ii) as to loans by a Guarantor or Subsidiary to a Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Agent and Lenders to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions reasonably acceptable to Agent, (B) promptly upon Agent’s request, Agent shall have received a subordination agreement, in form and substance reasonably satisfactory to Agent, providing for the terms of the subordination in right of payment of such Indebtedness of such Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and such Borrower, and (C) such Borrower shall not, directly or indirectly make, or be required to make, any payments in respect of such Indebtedness owing to any Subsidiary that is not a Borrower or Guarantor prior to the end of the then current term of this Agreement.
(i) the loans and advances set forth on Schedule 8.14 to the Perfection Certificate which are not permitted by other provisions of Section 8.14 above9.10 hereto; provided, that, as to such loans and advances, (i) the Borrowers and Guarantors shall not, directly or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto;
(j) other Investments or loans by a Borrower or Guarantor; provided, that, at the time of making any such Investment and immediately after giving effect thereto (i) the Required Conditions shall have been satisfied and (ii) the Borrowers no Event of Default shall furnish to the Lender all notices have occurred and be continuing;
(k) Permitted Acquisitions;
(l) Investments by any Borrower or demands Guarantor in connection with such loans and advances either received by the Borrowers or on their behalf, promptly after the receipt thereofany Foreign Subsidiary, or sent acquisitions by any Borrower or Guarantor of any foreign Acquired Business; provided, that, at the time of making any such Investment and immediately after giving effect thereto (i) the Required Conditions shall have been satisfied and (ii) no Event of Default shall have occurred and be continuing;
(m) other Investments by Borrowers and Guarantors and their Subsidiaries not otherwise permitted pursuant to subsections (a) through (l) of this Section 9.10, including, without limitation, any Investments by such Borrower or on their behalfGuarantor in any Foreign Subsidiary, concurrently with provided, that, (i) the sending thereofaggregate outstanding amount of all such Investments (valued at cost) shall not exceed $5,000,000 at any time (in each case determined without regard to any write-downs or write offs), as and (ii) at the case may be.time of making any such Investment and immediately after giving effect thereto no Event of Default shall have occurred and be continuing; and
Appears in 1 contract
Samples: Loan and Security Agreement (Franchise Group, Inc.)
Loans, Investments, Etc. The Borrowers and Aftermarket Entities shall not, and shall not permit any Subsidiary of their respective Subsidiaries to, directly or indirectly, make any loans or advance money or property to any person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the Capital Stock stock or Indebtedness indebtedness or all or a substantial part of the assets or property of any person, or form guarantee, assume, endorse, or acquire otherwise become responsible for (directly or indirectly) the indebtedness, performance, obligations or dividends of any Subsidiaries, Person or agree to do any of the foregoing, except:
(a) the endorsement of instruments for collection or deposit in the ordinary course of business;
; (b) investments in cash or Cash Equivalents;
in: (ci) stock or short-term direct obligations of the United States Government, (ii) negotiable certificates of deposit issued by any bank satisfactory to Agent, payable to the Borrowers by any Person order of a Borrower or an Aftermarket Entity or to bearer and delivered to Agent, and (iii) commercial paper rated A1 or the representative of such Person) in respect of Indebtedness of such Person owing to the Borrowers in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such PersonP1; provided, that, the original of as to any such stock or instrument evidencing such obligations shall be promptly delivered to the Lender, together with such stock power, assignment or endorsement by the Borrowers as the Lender may request;
(d) obligations of account debtors to the Borrowers arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to the Borrowers; provided, that, promptly upon the receipt of the original foregoing, unless waived in writing by Agent, Borrowers and/or Aftermarket Entities shall take such actions as are deemed necessary by Agent to perfect the security interest of any Agent in such promissory note by the Borrowers, such promissory note shall be endorsed to the order of the Lender by the Borrowers investments and promptly delivered to the Lender as so endorsed; or
(ec) the loans loans, advances and advances guarantees set forth on Schedule 8.14 9.10 to the Perfection Certificate which are not permitted by other provisions of Section 8.14 aboveInformation Certificate; provided, that, as to such loans loans, advances and advancesguarantees, (i) the Borrowers and Aftermarket Entities shall not, directly or indirectly, (A) amend, modify, alter or change the terms of such loans and loans, advances or guarantees or any agreement, document or instrument related thereto; , or (B) as to such guarantees, redeem, retire, defease, purchase or otherwise acquire the obligations arising pursuant to such guarantees, or set aside or otherwise deposit or invest any sums for such purpose, and (ii) the Borrowers and Aftermarket Entities shall furnish to the Lender Agent all notices or demands in connection with such loans and loans, advances or guarantees or other indebtedness subject to such guarantees either received by the Borrowers and/or Aftermarket Entities or on their behalf, promptly after the receipt thereof, or sent by the Borrowers or Aftermarket Entities or on their behalf, concurrently with the sending thereof, as the case may be.
Appears in 1 contract
Samples: Loan and Security Agreement (Proliance International, Inc.)
Loans, Investments, Etc. The Borrowers Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary immediately prior to such merger) any Capital Stock, evidences of Indebtedness or other Securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advance money or property to any personadvances to, or invest in (by capital contributionmake or permit to exist any investment or any other interest in, dividend or otherwise) any other Person, or purchase or repurchase the Capital Stock otherwise acquire (in one transaction or Indebtedness a series of transactions) any assets of any other Person constituting a business unit or all or a substantial part of the assets or property of any personother Person (whether through purchase of assets, merger or otherwise), or form or acquire any Subsidiaries, or agree to do any of the foregoingforegoing (each of the foregoing an “Investment”), except:
(a) the endorsement of instruments for collection or deposit in the ordinary course of business;
(b) investments Investments in cash or Cash Equivalents; provided, that, the terms and conditions of Section 5.2 and Section 6.3 hereof shall have been satisfied with respect to the Deposit Account, investment account or other account in which such cash or Cash Equivalents are held;
(ci) the existing equity Investments of each Borrower and Guarantor as of the Closing Date in its Subsidiaries, provided, that, no Borrower or Guarantor shall have any further obligations or liabilities to make any capital contributions or other additional investments or other payments to or in or for the benefit of any of such Subsidiaries;
(i) a Borrower or Guarantor may form a Subsidiary, provided, that,
(A) Agent shall have received promptly upon any such formation or acquisition all of the agreements, documents and instruments required by the terms of Sections 5.2 and 9.23 hereof,
(B) as of the date of the organization, formation or acquisition of any such Subsidiary and immediately after giving effect thereto, no Event of Default shall have occurred and be continuing, and
(C) in the event that Administrative Borrower requests that any such new Subsidiary that is directly or indirectly wholly owned by Parent be designated a Borrower hereunder, in no event shall any Inventory, Accounts, Credit Card Receivables, Equipment or Intellectual Property of such Subsidiary be deemed Eligible Inventory, Eligible Accounts, Eligible Credit Card Receivables, Eligible Equipment or Eligible Intellectual Property until Agent shall have conducted a field examination and appraisal with respect to such assets and the results of such field examination, appraisal, and other due diligence shall be reasonably satisfactory to Agent, and then only to the extent the criteria for Eligible Inventory, Eligible Accounts, Eligible Credit Card Receivables, Eligible Equipment and Eligible Intellectual Property set forth herein are satisfied with respect thereto (as such criteria may be reasonably modified by Agent to reflect the results of Agent’s field examination and appraisal); and
(D) such Subsidiary shall be an operating company that engages in a Permitted Business or an operating company or a holding company formed to make a Permitted Acquisition;
(d) Investments by (x) a Borrower, Guarantor or Subsidiary in another Borrower or Guarantor, in each case after the date hereof or (y) a Subsidiary that is not a Loan Party in another Subsidiary that is not a Loan Party; provided, in each case, that, (i) to the extent that such Investment gives rise to any Indebtedness, such Indebtedness is permitted hereunder, and (ii) to the extent that such Investment gives rise to the issuance of any shares of Capital Stock, such issuance is permitted hereunder;
(e) loans and advances by any Borrower, Guarantor or Subsidiary to employees of such Borrower, Guarantor or Subsidiary not to exceed the principal amount of $500,000 in the aggregate at any time outstanding;
(f) stock or obligations issued to the Borrowers any Borrower, Guarantor or Subsidiary by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to the Borrowers such Borrower or Guarantor in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person; provided, that, the original of any such stock or instrument issued to any Borrower or Guarantor evidencing such obligations shall be promptly delivered to, subject to the LenderIntercreditor Agreement, Agent or ABL Agent, upon the request of Agent or ABL Agent, together with such stock power, assignment or endorsement by the Borrowers such Borrower or Guarantor as the Lender Agent may request;
(dg) obligations of account debtors Account Debtors to the Borrowers any Borrower, Guarantor or Subsidiary arising from Accounts which are past due whether or not evidenced by a promissory note made by such account debtor Account Debtor payable to the Borrowerssuch Borrower, Guarantor or Subsidiary; provided, that, promptly upon the receipt of the original of any such promissory note by any such Borrower or Guarantor, subject to the BorrowersIntercreditor Agreement, such promissory note shall be endorsed to the order of the Lender Agent or ABL Agent by the Borrowers such Borrower or Guarantor and promptly delivered to the Lender Agent or ABL Agent as so endorsed; or;
(eh) loans by (x) a Borrower or Guarantor or Subsidiary to another Borrower or Guarantor or (y) a Subsidiary that is not a Loan Party to a Borrower or Guarantor, in each case after the date hereof, provided, that,
(i) as to all of such loans by a Borrower or Guarantor, (A) the Indebtedness arising pursuant to any such loan shall not be evidenced by a promissory note or other instrument, unless the single original of such note or other instrument is promptly delivered, subject to the Intercreditor Agreement, to Agent or ABL Agent upon Agent’s or ABL Agent’s request to hold as part of the Collateral (as defined in this Agreement or in the ABL Credit Agreement), with such endorsement and/or assignment by the payee of such note or other instrument as Agent may require, (B) as of the date of any such loan and after giving effect thereto, the Borrower or Guarantor making such loan shall be Solvent, and (C) as of the date of any such loan and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(ii) as to loans by a Guarantor or Subsidiary to a Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Agent and Lenders to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions reasonably acceptable to Agent, (B) promptly upon Agent’s request, Agent shall have received a subordination agreement, in form and substance reasonably satisfactory to Agent, providing for the terms of the subordination in right of payment of such Indebtedness of such Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and such Borrower, and (C) such Borrower shall not, directly or indirectly make, or be required to make, any payments in respect of such Indebtedness owing to any Subsidiary that is not a Borrower or Guarantor prior to the end of the then current term of this Agreement;
(i) the loans and advances set forth on Schedule 8.14 to the Perfection Certificate which are not permitted by other provisions of Section 8.14 above9.10 hereto; provided, that, as to such loans and advances, (i) the Borrowers and Guarantors shall not, directly or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto;
(j) [reserved]the acquisition of the Affiliated Lender Loan Holdings by any Affiliated Lender;
(k) Permitted Acquisitions;
(l) the Convertible Note Hedge and Warrant Transactions;
(m) [reserved];
(n) Investments by any Borrower or Guarantor in any Foreign Subsidiary, or acquisitions by any Borrower or Guarantor of any foreign Acquired Business, not to exceed aggregate consideration for all such Investments and acquisitions under this subsection (n) of $500,000 (plus the Net Proceeds of any subsequent sale of any portion of the interests in such Foreign Subsidiary or foreign Acquired Business acquired pursuant to this subsection (n) but in no event shall Investments pursuant to this subsection (n) exceed $500,000); provided, that, at the time of making any such Investment or acquisition and immediately after giving effect thereto (i) the Required Conditions shall have been satisfied and (ii) no Event of Default shall have occurred and be continuing; and
(o) other Investments by Borrowers and Guarantors and their Subsidiaries not otherwise permitted pursuant to subsections (a) through (n) of this Section 9.10, (other than Foreign Subsidiaries), provided, that, (i) the Borrowers aggregate outstanding amount of all such Investments (valued at cost) shall furnish not exceed $5,000,000 at any time (in each case determined without regard to any write-downs or write offs), and (ii) at the Lender all notices or demands time of making any such Investment and immediately after giving effect thereto no Event of Default shall have occurred and be continuing. Notwithstanding the foregoing, in connection with such loans and advances either received by no event shall any Intellectual Property of the Borrowers or on their behalf, promptly after Loan Parties be included in any of the receipt thereof, or sent by the Borrowers or on their behalf, concurrently with the sending thereof, as the case may beforegoing Investments.
Appears in 1 contract
Samples: Loan and Security Agreement (Franchise Group, Inc.)
Loans, Investments, Etc. The Borrowers Borrower shall not, and shall not permit any Subsidiary to, directly or indirectly, make make, or suffer or permit to exist, any loans or advance money or property to any person, or invest any investment in (by capital contribution, dividend or otherwise) or purchase or repurchase the Capital Stock or Indebtedness or all or a substantial part of the assets or property of any personperson (except as allowed pursuant to a Permitted Merger), or form or acquire any SubsidiariesSubsidiaries (except as allowed pursuant to a Permitted Merger), or agree to do any of the foregoing, except:
(a) the endorsement of instruments for collection or deposit in the ordinary course of business;
(b) investments in cash or Cash Equivalents, provided, that, (i) no Revolving Loans are then outstanding and (ii) the terms and conditions of Section 5.2 hereof shall have been satisfied with respect to the deposit account or investment account in which such cash or Cash Equivalents are held;
(c) the existing equity investments of Borrower or any Subsidiary as of the date hereof in any other Borrower or any Subsidiary, provided, that, Borrower shall have no obligation to make any other investment in, or loans to, or other payments in respect of, any such Subsidiaries;
(d) equity investments of Borrower or any Subsidiary in any wholly-owned Subsidiary incorporated under the laws of any State of the United States of America formed or acquired after the date hereof, provided, that, (i) promptly upon such formation or acquisition, Borrower shall cause any such Subsidiary to execute and deliver to Lender, in form and substance satisfactory to Lender, (A) an absolute and unconditional guarantee of payment of the Obligations, (B) a security agreement granting to Lender a first security interest and lien (except as otherwise consented to in writing by Lender) upon all of the assets of such Subsidiary, and (C) such other agreements, documents and instruments as Lender may require, including, but not limited to, supplements and amendments hereto and other loan agreements or instruments evidencing Indebtedness of such new Subsidiary to Lender, (ii) promptly upon Lender's request: (A) Borrower shall execute and deliver to Lender, in form and substance satisfactory to Lender, a pledge and security agreement granting to Lender a first pledge of and lien on all of the issued and outstanding shares of Capital Stock of such Subsidiary, and (B) Borrower shall deliver the original stock certificates evidencing such shares of Capital Stock (or such other evidence as may be issued in the case of a limited liability company or other entity) together with stock powers with respect thereto duly executed in blank (or the equivalent thereof in the case of a limited liability company), (iii) as of the date of any payment in respect of such investment and after giving effect thereto, no Default or Event of Default shall exist or have occurred, (iv) in no event shall the aggregate amount of all capital contributions, investments or other amounts paid by Borrower or any Subsidiary to any new Subsidiary formed or acquired after the date hereof or to any other person for or otherwise in connection with the formation or acquisition thereof exceed $2,000,000, and (v) as of the date of any payment in respect of such investment and after giving effect thereto, the Excess Availability (A) shall be not less than $2,500,000, and (B) for each of the immediately preceding thirty (30) consecutive days shall have been not less than $2,500,000.
(e) stock or obligations issued to the Borrowers Borrower by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to the Borrowers Borrower in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person; provided, that, the original of any such stock or instrument evidencing such obligations shall be promptly delivered to the Lender, upon Lender's request, together with such stock power, assignment or endorsement by the Borrowers Borrower as the Lender may request;
(df) obligations of account debtors to the Borrowers Borrower arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to the BorrowersBorrower; provided, that, promptly upon the receipt of the original of any such promissory note by the BorrowersBorrower, such promissory note shall be endorsed to the order of the Lender by the Borrowers Borrower and promptly delivered to the Lender as so endorsed; or;
(eg) the loans and advances set forth on Schedule 8.14 9.10 to the Perfection Certificate which are not permitted by other provisions of Section 8.14 aboveInformation Certificate; provided, that, as to such loans and advances, (i) the Borrowers Borrower shall not, directly or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto; thereto and (ii) the Borrowers Borrower shall furnish to the Lender all notices or demands in connection with such loans and advances either received by the Borrowers Borrower or on their its behalf, promptly after the receipt thereof, or sent by the Borrowers Borrower or on their its behalf, concurrently with the sending thereof, as the case may be.; and
(h) loans from one Borrower (the "Loaning Borrower") to another Borrower or Subsidiary, provided that: (i) both immediately before and immediately after the making of any such loan, the Net Worth of the Loaning Borrower is equal to no less than: (A) $1,000,000 if the Loaning Borrower is Zila or ZP, (B) $5,000,000 if the Loaning Borrower is Rykxx Xxntal, and (C) $10,000,000 if the Loaning Borrower is Inter-Cal; and (ii) the total of all such loans outstanding to the following entities shall not at any time exceed $750,000 in the aggregate: Zila Limited, a United Kingdom corporation, Zila International, Inc., and Zila Acquisition Corp.
Appears in 1 contract
Loans, Investments, Etc. The Borrowers Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary immediately prior to such merger) any Capital Stock, evidences of Indebtedness or other Securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advance money or property to any personadvances to, or invest in (by capital contributionmake or permit to exist any investment or any other interest in, dividend or otherwise) any other Person, or purchase or repurchase the Capital Stock otherwise acquire (in one transaction or Indebtedness a series of transactions) any assets of any other Person constituting a business unit or all or a substantial part of the assets or property of any personother Person (whether through purchase of assets, merger or otherwise), or form or acquire any Subsidiaries, or agree to do any of the foregoingforegoing (each of the foregoing an “Investment”), except:
(a) the endorsement of instruments for collection or deposit in the ordinary course of business;
(b) investments Investments in cash or Cash Equivalents; provided, that, the terms and conditions of Section 5.2 and Section 6.3 hereof shall have been satisfied with respect to the Deposit Account, investment account or other account in which such cash or Cash Equivalents are held;
(ci) the existing equity Investments of each Borrower and Guarantor as of the Closing Date in its Subsidiaries, provided, that, no Borrower or Guarantor shall have any further obligations or liabilities to make any capital contributions or other additional investments or other payments to or in or for the benefit of any of such Subsidiaries;
(ii) a Borrower or Guarantor may form a Subsidiary, provided, that,
(A) Agent shall have received promptly upon any such formation or acquisition all of the agreements, documents and instruments required by the terms of Sections 5.2 and 9.23 hereof,
(B) as of the date of the organization, formation or acquisition of any such Subsidiary and immediately after giving effect thereto, no Event of Default shall have occurred and be continuing, and
(C) in the event that Administrative Borrower requests that any such new Subsidiary that is directly or indirectly wholly owned by Parent be designated a Borrower hereunder, in no event shall any Inventory, Accounts, Credit Card Receivables, Equipment or Intellectual Property of such Subsidiary be deemed Eligible Inventory, Eligible Accounts, Eligible Credit Card Receivables, Eligible Equipment or Eligible Intellectual Property until Agent shall have conducted a field examination and appraisal with respect to such assets and the results of such field examination, appraisal, and other due diligence shall be reasonably satisfactory to Agent, and then only to the extent the criteria for Eligible Inventory, Eligible Accounts, Eligible Credit Card Receivables, Eligible Equipment and Eligible Intellectual Property set forth herein are satisfied with respect thereto (as such criteria may be reasonably modified by Agent to reflect the results of Agent’s field examination and appraisal); and
(D) such Subsidiary shall be an operating company that engages in a Permitted Business or an operating company or a holding company formed to make a Permitted Acquisition;
(d) Investments by (x) a Borrower, Guarantor or Subsidiary in another Borrower or Guarantor, in each case after the date hereof or (y) a Subsidiary that is not a Loan Party in another Subsidiary that is not a Loan Party; provided, in each case, that, (i) to the extent that such Investment gives rise to any Indebtedness, such Indebtedness is permitted hereunder, and (ii) to the extent that such Investment gives rise to the issuance of any shares of Capital Stock, such issuance is permitted hereunder;
(e) loans and advances by any Borrower, Guarantor or Subsidiary to employees of such Borrower, Guarantor or Subsidiary not to exceed the principal amount of $500,000 in the aggregate at any time outstanding;
(f) stock or obligations issued to the Borrowers any Borrower, Guarantor or Subsidiary by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to the Borrowers such Borrower or Guarantor in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person; provided, that, the original of any such stock or instrument issued to any Borrower or Guarantor evidencing such obligations shall be promptly delivered to, subject to the LenderIntercreditor Agreement, Agent or ABL Agent, upon the request of Agent or ABL Agent, together with such stock power, assignment or endorsement by the Borrowers such Borrower or Guarantor as the Lender Agent may request;
(dg) obligations of account debtors Account Debtors to the Borrowers any Borrower, Guarantor or Subsidiary arising from Accounts which are past due whether or not evidenced by a promissory note made by such account debtor Account Debtor payable to the Borrowerssuch Borrower, Guarantor or Subsidiary; provided, that, promptly upon the receipt of the original of any such promissory note by any such Borrower or Guarantor, subject to the BorrowersIntercreditor Agreement, such promissory note shall be endorsed to the order of the Lender Agent or ABL Agent by the Borrowers such Borrower or Guarantor and promptly delivered to the Lender Agent or ABL Agent as so endorsed; or;
(eh) loans by (x) a Borrower or Guarantor or Subsidiary to another Borrower or Guarantor or (y) a Subsidiary that is not a Loan Party to a Borrower or Guarantor, in each case after the date hereof, provided, that,
(i) as to all of such loans by a Borrower or Guarantor, (A) the Indebtedness arising pursuant to any such loan shall not be evidenced by a promissory note or other instrument, unless the single original of such note or other instrument is promptly delivered, subject to the Intercreditor Agreement, to Agent or ABL Agent upon Agent’s or ABL Agent’s request to hold as part of the Collateral (as defined in this Agreement or in the ABL Credit Agreement), with such endorsement and/or assignment by the payee of such note or other instrument as Agent may require, (B) as of the date of any such loan and after giving effect thereto, the Borrower or Guarantor making such loan shall be Solvent, and (C) as of the date of any such loan and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(ii) as to loans by a Guarantor or Subsidiary to a Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Agent and Lenders to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions reasonably acceptable to Agent, (B) promptly upon Agent’s request, Agent shall have received a subordination agreement, in form and substance reasonably satisfactory to Agent, providing for the terms of the subordination in right of payment of such Indebtedness of such Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and such Borrower, and (C) such Borrower shall not, directly or indirectly make, or be required to make, any payments in respect of such Indebtedness owing to any Subsidiary that is not a Borrower or Guarantor prior to the end of the then current term of this Agreement;
(i) the loans and advances set forth on Schedule 8.14 to the Perfection Certificate which are not permitted by other provisions of Section 8.14 above9.10 hereto; provided, that, as to such loans and advances, (i) the Borrowers and Guarantors shall not, directly or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto;
(j) [reserved];
(k) Permitted Acquisitions;
(l) the Convertible Note Hedge and Warrant Transactions;
(m) [reserved];
(n) Investments by any Borrower or Guarantor in any Foreign Subsidiary, or acquisitions by any Borrower or Guarantor of any foreign Acquired Business, not to exceed aggregate consideration for all such Investments and acquisitions under this subsection (n) of $500,000 (plus the Net Proceeds of any subsequent sale of any portion of the interests in such Foreign Subsidiary or foreign Acquired Business acquired pursuant to this subsection (n) but in no event shall Investments pursuant to this subsection (n) exceed $500,000); provided, that, at the time of making any such Investment or acquisition and immediately after giving effect thereto (i) the Required Conditions shall have been satisfied and (ii) no Event of Default shall have occurred and be continuing; and
(o) other Investments by Borrowers and Guarantors and their Subsidiaries not otherwise permitted pursuant to subsections (a) through (n) of this Section 9.10, (other than Foreign Subsidiaries), provided, that, (i) the Borrowers aggregate outstanding amount of all such Investments (valued at cost) shall furnish not exceed $5,000,000 at any time (in each case determined without regard to any write-downs or write offs), and (ii) at the Lender all notices or demands time of making any such Investment and immediately after giving effect thereto no Event of Default shall have occurred and be continuing. Notwithstanding the foregoing, in connection with such loans and advances either received by no event shall any Intellectual Property of the Borrowers or on their behalf, promptly after Loan Parties be included in any of the receipt thereof, or sent by the Borrowers or on their behalf, concurrently with the sending thereof, as the case may beforegoing Investments.
Appears in 1 contract
Samples: Loan and Security Agreement (Franchise Group, Inc.)
Loans, Investments, Etc. The Borrowers Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly, make any loans or advance money or property to any person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the Capital Stock or Indebtedness or all or a substantial part of the assets or property of any person, or guarantee, assume, endorse, or otherwise become responsible for (directly or indirectly), the Indebtedness, performance, obligations or dividends of any other Person or form or acquire any Subsidiaries, or agree to do any of the foregoing, except:
(a) the endorsement of instruments for collection or deposit in the ordinary course of business;
(b) investments in cash or Cash Equivalents, provided, that, as to any of the foregoing, unless waived in writing by Agent, each Borrower, Guarantor or Subsidiary, as the case may be, shall take such actions as are deemed necessary by Agent to perfect the security interest of Agent in such investments, except that, each Borrower, Guarantor or Subsidiary, as the case may be, may make investments of the cash proceeds of any sale of its property (to the extent such disposition is permitted herein) other than Collateral, without taking actions to perfect the security interests of Agent in such investments;
(c) loans by a Borrower to any other Borrower after the date hereof, provided, that, as to any such loan, (i) each month Borrowers shall provide to Agent a report in form and substance reasonably satisfactory to Agent of the outstanding amount of such loans as of the last day of the immediately preceding month and indicating any loans made and payments received during the immediately preceding month, (ii) the Indebtedness arising pursuant to any such loan shall not be evidenced by a promissory note or other instrument, unless the single original of such note or other instrument is delivered to Agent to hold as part of the Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Agent may require, (iii) as of the date of any such loan and after giving effect thereto, the Borrower making such loan shall be Solvent; and (iv) as of the date of any such loan and after giving effect thereto, no Default or Event of Default shall exist or have occurred and be continuing;
(d) any guaranties by any Borrower or Guarantor or other assumptions or endorsements of Indebtedness constituting permitted Indebtedness under Section 9.9 hereof;
(e) loans by a Guarantor (or a Subsidiary of a Guarantor or a Borrower other than a Borrower) to a Borrower after the date hereof, provided, that, as to any such loan (i) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Agent to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Agent, (ii) Agent shall have received, in form and substance satisfactory to Agent, a subordination agreement providing for the terms of the subordination in right of payment of such Indebtedness of such Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor or Subsidiary (as the case may be) and such Borrower, (iii) such Borrower shall not, directly or indirectly make, or be required to make, any payments in respect of such Indebtedness, (iv) each month Borrowers shall provide to Agent a report in form and substance satisfactory to Agent of the outstanding amount of such loans as of the last day of the immediately preceding month and indicating any loans made and payments received during the immediately preceding month, and (v) the Indebtedness arising pursuant to any such loan shall not be evidenced by a promissory note or other instrument, unless the single original of such note or other instrument is delivered to Agent to hold as part of the Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Agent may require;
(f) loans by a Borrower to a Guarantor; provided, that, as to any such loan, (i) each month Borrowers shall provide to Agent a report in form and substance satisfactory to Agent of the outstanding amount of such loans as of the last day of the immediately preceding month and indicating any loans made and payments received during the immediately preceding month, (ii) the Indebtedness arising pursuant to any such loan shall not be evidenced by a promissory note or other instrument, unless the single original of such note or other instrument is delivered to Agent to hold as part of the Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Agent may require, and (iii) as of the date of the making of such loan and after giving effect thereto, the Borrower making such loan shall be Solvent;
(g) the formation or acquisition by a Borrower or Guarantor after the date hereof of one or more Subsidiaries incorporated or organized under the laws of any State of the United States of America; provided, that: (i) such Borrower or Guarantor (as the case may be) shall cause any such Subsidiary to execute and deliver to Agent, in form and substance satisfactory to Agent, (A) an absolute and unconditional guarantee of payment of the Obligations, (B) a security agreement granting to Agent for itself and the ratable benefit of Lenders a first security interest and lien (except as otherwise consented to in writing by Agent) upon property of any such Subsidiary constituting the same items or types of property set forth in Section 5 hereof, (C) related UCC financing statements, and (D) such other agreements, documents and instruments as Agent may require, including, but not limited to, supplements and amendments hereto and other loan agreements or instruments evidencing Indebtedness of such new Subsidiaries to Agent, (ii) the Subsidiary formed or acquired shall be engaged in a business related, ancillary or complimentary to the businesses of Borrowers as conducted on the date hereof, (iii) in the case of loans and advances, the original of any promissory note or other instrument evidencing the Indebtedness arising pursuant to such loans and advances shall be delivered, or caused to be delivered, to Agent, at Agent's option, together with an appropriate endorsement and with full recourse to the payee thereof, and (iv) Agent shall have received (A) not less than ten (10) Business Days= prior written notice of the formation or acquisition of any such Subsidiary and such information with respect thereto as Agent may request, and (B) true, correct and complete copies of all agreements, documents and instruments relating thereto and (v) as of the date of any such loan, advance, capital contribution or other investment or payment, no Default or Event of Default shall exist or have occurred and be continuing;
(h) the existing equity investments of Borrowers, Guarantors and their Subsidiaries as of the date hereof in their respective Subsidiaries, provided, that, Borrowers and Guarantors shall have no further obligations or liabilities to make any capital contributions or other additional investments or other payments to or in or for the benefit of any of such Subsidiaries;
(i) stock or obligations issued to the Borrowers any Borrower, Guarantor or any of their respective Subsidiaries by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to the Borrowers any Borrower or Subsidiary in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person; provided, that, prior to an Event of Default, if the amount or value thereof is greater than $100,000, or the amount or value of all of such stock and instruments in the aggregate is greater than $250,000, and after an Event of Default, regardless of the amount or value thereof, the original of any such stock or instrument evidencing such obligations to a Borrower, Guarantor or any Subsidiary shall be promptly delivered to the LenderAgent, upon Agent's request, together with such stock power, assignment or endorsement by the Borrowers such Borrower or as the Lender Agent may request;
(dj) obligations of account debtors to the Borrowers any Borrower, Guarantor or Subsidiaries arising from Accounts which are past due evidenced by provided, that, such Borrower, Guarantor or Subsidiary, as the case may be, uses its best efforts to evidence such obligations, to the extent such obligations exceed $100,000, with a promissory note made by such account debtor payable to such Borrower or Subsidiary, as the Borrowerscase may be; provided, that, prior to an Event of Default, if the amount of such note is greater than $100,000, or the amount of all of such notes in the aggregate is greater than $250,000, and after an Event of Default, regardless of the amount thereof, promptly upon the receipt of the original of any such promissory note by the Borrowersa Borrower to a Borrower, Guarantor or any Subsidiary such promissory note shall be endorsed to the order of the Lender Agent by the Borrowers such Borrower to a Borrower, Guarantor or any Subsidiary and promptly delivered to the Lender Agent as so endorsed; or;
(ek) loans or advances by any Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $1,000,000 in the aggregate at any time outstanding in the ordinary course of such Borrower's, Guarantor's or Subsidiary's business for reasonable and necessary work-related travel and other ordinary business expenses to be incurred by such employees in connection with their employment with such Borrower, Guarantor or Subsidiary, as the case may be;
(l) any investments of any Borrower, Guarantor or any of their respective Subsidiaries in (i) Hedge Agreements permitted under Section 9.9(r) hereof and (ii) swap agreements, cap agreements, collar agreements, exchange agreements futures or forward hedging contracts or similar contractual arrangements intended to protect a Person against fluctuations in interest rates, currency exchange rates or the price of raw materials and other chemical products used or produced in the business of any Borrower; provided, that, with respect to the arrangements described in clause (ii) hereof, such arrangements are with banks or other financial institutions that have combined capital and surplus and undivided profits of not less than $250,000,000 and are not for speculative purposes and are unsecured;
(m) loans by any Subsidiary of Pep Boys (other than a Borrower or Guarantor) to any other Subsidiary of Pep Boys (other than a Borrower or Guarantor);
(n) the existing loans, advances and guarantees set forth on Schedule 9.10 to the Information Certificate, provided, that, as to such loans, advances and guarantees, (i) Borrowers, Guarantors, or their respective Subsidiaries, as the case may be, shall not, directly or indirectly, (A) amend, modify, alter or change in any material respect the terms of such loans, advances or guarantees or any agreement, document or instrument related thereto, except, that, such Borrower, Guarantor or Subsidiary, as the case may be, after prior written notice to Agent, amend, modify, alter or change the terms thereof so as to extend the maturity thereof or defer the timing of any payments in respect thereof, or to forgive or cancel a portion of such indebtedness (other than pursuant to payments thereof), or to release any liens or security interests in any assets of Borrower which secure such indebtedness (if any), or to reduce the rate or any fees in connection therewith, or to make any covenants contained therein less restrictive or burdensome as to Borrower or otherwise more favorable to Borrower, Guarantor or Subsidiary, as the case may be, (as determined in good faith by Agent), or (B) as to such guarantees, redeem, retire, defease, purchase or otherwise acquire such guarantee or set aside or otherwise deposit or invest any sums for such purpose (except as expressly required pursuant to the terms thereof or pursuant to regularly scheduled payments permitted herein) and (ii) Borrowers and Guarantors shall furnish to Agent all notices or demands in connection with such loans, advances or guarantees either received by a Borrower, Guarantor or Subsidiary on its behalf, promptly after the receipt thereof, or sent by a Borrower, Guarantor or Subsidiary on its behalf, concurrently with the sending thereof, as the case may be;
(o) investments (including, without limitation, any loan, advance, capital contribution or other investment or payment) in joint ventures or other Persons (each a "Business Enterprise") by Pep Boys for the purpose of development, creation and operation of an internet business; provided, that: (i) each such Business Enterprise is entered into with a Person who is not an Affiliate, (ii) the Business Enterprise shall be engaged in a business related, ancillary or complimentary to the businesses of Borrowers as conducted on the date hereof, (iii) Agent shall have received (A) (1) in the event the initial investment (whether characterized by loans, capital contributions, letters of credit or otherwise) in the Business Enterprise is not in excess of $5,000,000, not more than two (2) Business Days= written notice after the date of such investment, and such other information with respect thereto as Agent may reasonably request, or (2) in the event such initial investment is to be equal to or greater than $5,000,000, not less than ten (10) Business Days prior written notice of such investment in such Business Enterprise, and such other information with respect thereto as Agent may reasonably request and (B) true, correct and complete copies of all agreements, documents and instruments relating thereto, (iv) in the case of loans and advances, the original of any promissory note or other instrument evidencing the Indebtedness arising pursuant to such loans and advances shall be delivered, or caused to be delivered, to Agent, at Agent's option, together with an appropriate endorsement and with full recourse to the payee thereof, (v) so long as a Cash Dominion Event is continuing, in no event shall the total amount of investments made by Pep Boys in all such Business Enterprises be in excess of $15,000,000 in each fiscal year, (vi) the total amount of all such investments in such Business Enterprises shall not exceed $50,000,000 in the aggregate at any time, and (vii) Agent shall receive a monthly report in form and substance satisfactory to Agent of the amount of such investment and such other information with respect thereto as Agent may reasonably request and (viii) as of the date of any such loan, advance, capital contribution or other investment or payment, no Default or Event of Default shall exist or have occurred and be continuing;
(p) the existing loans by Pep Boys to the Flexi-Trust, pursuant to the terms and conditions of the Flexi-Trust Agreement in effect on the date hereof;
(q) repurchases and redemptions of Capital Stock permitted pursuant to Section 9.11(c);
(r) the loans and advances set forth on Schedule 8.14 9.10 to the Perfection Certificate which are not permitted by other provisions of Section 8.14 aboveInformation Certificate; provided, that, as to such loans and advances, (i) the Borrowers and Guarantors shall not, directly or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto; thereto and (ii) the Borrowers and Guarantors shall furnish to the Lender Agent all notices or demands in connection with such loans and advances either received by the Borrowers any Borrower or Guarantor or on their its behalf, promptly after the receipt thereof, or sent by the Borrowers any Borrower or Guarantor or on their its behalf, concurrently with the sending thereof, as the case may be.; and
Appears in 1 contract
Samples: Loan and Security Agreement (Pep Boys Manny Moe & Jack)
Loans, Investments, Etc. The Borrowers Each Borrower and Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly, purchase, hold or acquire (including pursuant to any merger with any Person that was not a wholly owned Subsidiary immediately prior to such merger) any Capital Stock, evidences of indebtedness or other securities (including any option, warrant or other right to acquire any of the foregoing) of, make or permit to exist any loans or advance money or property to any personadvances to, or invest in (by capital contributionmake or permit to exist any investment or any other interest in, dividend or otherwise) any other Person, or purchase or repurchase the Capital Stock otherwise acquire (in one transaction or Indebtedness a series of transactions) any assets of any other Person constituting a business unit or all or a substantial part of the assets or property of any personother Person (whether through purchase of assets, merger or otherwise), or form or acquire any Subsidiaries, or agree to do any of the foregoingforegoing (each of the foregoing an “Investment”), except:
(a) the endorsement of instruments for collection or deposit in the ordinary course of business;
(b) Investments in cash or Cash Equivalents, so long as no Event of Default has occurred and is continuing and no Compliance Period exists, provided, that, (i) if any Revolving Loans are outstanding, Borrower shall not have investments in cash or Cash EquivalentsEquivalents in an aggregate amount in excess of $10,000,000 (in addition to any amounts in Store Accounts and Manual Sweeping Accounts as permitted in Section 6.3(a)(i) hereof), and (ii) the terms and conditions of Section 5.2 hereof shall have been satisfied with respect to the deposit account, investment account or other account in which such cash or Cash Equivalents are held;
(ci) the existing equity Investments of each Borrower and Guarantor as of the date hereof in its Subsidiaries, provided, that, no Borrower or Guarantor shall have any further obligations or liabilities to make any capital contributions or other additional investments or other payments to or in or for the benefit of any of such Subsidiaries;
(ii) a Borrower or Guarantor may form a Subsidiary, provided, that,
(A) Agent shall have received promptly upon any such formation or acquisition all of the agreements, documents and instruments required by the terms of Sections 5.2 and 9.23 hereof,
(B) as of the date of the organization, formation or acquisition of any such Subsidiary and immediately after giving effect thereto, no Event of Default shall have occurred and be continuing, and
(C) in the event that Administrative Borrower requests that such new Subsidiary be designated a Borrower hereunder, in no event shall any Inventory or Credit Card Receivables of such Subsidiary be deemed Eligible Inventory or Eligible Credit Card Receivables until Agent shall have conducted a field examination and appraisal with respect to such assets and the results of such field examination, appraisal, and other due diligence shall be reasonably satisfactory to Agent, and then only to the extent the criteria for Eligible Inventory and Eligible Credit Card Receivables set forth herein are satisfied with respect thereto (as such criteria may be reasonably modified by Agent to reflect the results of Agent’s field examination and appraisal including any separate advance percentage with respect to such Credit Card Receivables as Agent may reasonably determine); and
(D) such Subsidiary shall be an operating company that engages in a Permitted Business or an operating company or a holding company formed to make a Permitted Acquisition.
(d) Investments by a Borrower, Guarantor or other Subsidiary of Parent in a Borrower, Guarantor or other Subsidiary of Parent, in each case after the date hereof, provided, that, (1) to the extent that such Investment gives rise to any Indebtedness, such Indebtedness is permitted hereunder, (2) to the extent that such Investment gives rise to the issuance of any shares of Capital Stock, such issuance is permitted hereunder and (3) to the extent of any Investments by a Borrower or Guarantor in a Subsidiary of Parent that is not a Borrower or Guarantor, the aggregate amount of such Investments shall not exceed $5,000,000 at any time outstanding and as of the date of any such Investment and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing;
(e) loans and advances by any Borrower, Guarantor or Subsidiary to employees of such Borrower or Guarantor not to exceed the principal amount of $3,000,000 in the aggregate at any time outstanding;
(f) stock or obligations issued to the Borrowers any Borrower, Guarantor or Subsidiary by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to the Borrowers such Borrower or Guarantor in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person; provided, that, the original of any such stock or instrument evidencing such obligations shall be promptly delivered to the LenderAgent, upon Agent’s request, together with such stock power, assignment or endorsement by the Borrowers such Borrower or Guarantor as the Lender Agent may request;
(dg) obligations of account debtors to the Borrowers any Borrower, Guarantor or Subsidiary arising from Accounts which are past due whether or not evidenced by a promissory note made by such account debtor payable to the Borrowerssuch Borrower or Guarantor; provided, that, promptly upon the receipt of the original of any such promissory note by the Borrowerssuch Borrower or Guarantor, such promissory note shall be endorsed to the order of the Lender Agent by the Borrowers such Borrower or Guarantor and promptly delivered to the Lender Agent as so endorsed; or;
(eh) loans by a Borrower or Guarantor or Subsidiary to another Borrower or Guarantor after the date hereof, provided, that,
(i) as to all of such loans, (A) the Indebtedness arising pursuant to any such loan shall not be evidenced by a promissory note or other instrument, unless the single original of such note or other instrument is promptly delivered to Agent upon its request to hold as part of the Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Agent may require, (B) as of the date of any such loan and after giving effect thereto, the Borrower or Guarantor making such loan shall be Solvent, and (C) as of the date of any such loan and after giving effect thereto, no Default or Event of Default shall have occurred and be continuing, and
(ii) as to loans by a Guarantor or Subsidiary to a Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Agent and Lenders to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions reasonably acceptable to Agent, (B) promptly upon Agent’s request, Agent shall have received a subordination agreement, in form and substance reasonably satisfactory to Agent, providing for the terms of the subordination in right of payment of such Indebtedness of such Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and such Borrower, and (C) such Borrower shall not, directly or indirectly make, or be required to make, any payments in respect of such Indebtedness prior to the end of the then current term of this Agreement.
(i) the loans and advances set forth on Schedule 8.14 to the Perfection Certificate which are not permitted by other provisions of Section 8.14 above9.10 hereto; provided, that, as to such loans and advances, (i) the Borrowers and Guarantors shall not, directly or indirectly, amend, modify, alter or change the terms of such loans and advances or any agreement, document or instrument related thereto; thereto and (ii) the Borrowers and Guarantors shall furnish to the Lender Agent all notices or demands in connection with such loans and advances either received by the Borrowers any Borrower or Guarantor or on their its behalf, promptly after the receipt thereof, or sent by the Borrowers any Borrower or Guarantor or on their its behalf, concurrently with the sending thereof, as the case may be;
(j) investments or loans by a Borrower or Guarantor in or to a Subsidiary of Parent that is not a Borrower or Guarantor, provided, that all of the conditions set forth in Section 9.11(d) are satisfied with respect to such investment as if such investment or loan were the payment of a cash dividend,
(k) Permitted Acquisitions,
(l) the loan by Vitamin Shoppe to Xxxxxx X. Xxxxxxxxx in an original principal amount of $1,500,000 plus accrued interest,
(m) loans and advances by any Subsidiary of Parent which is not a Borrower, Guarantor to any other Subsidiary of Parent which is not a Borrower or Guarantor; and
(n) other Investments by Borrowers and Guarantors not otherwise permitted pursuant to subsections (a) through (i) of this Section 9.10, provided, that, (i) the aggregate outstanding amount of all such Investments (valued at cost) shall not exceed $1,000,000 at any time, and (ii) at the time of making any such Investment and immediately after giving effect thereto no Event of Default shall have occurred and be continuing.
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