Loans, Investments, Guarantees, Etc. Borrower and Guarantor shall not, ----------------------------------- and shall not permit any Subsidiary to, directly or indirectly, make or permit to exist any loans or advance money or property to any Person, or invest in (by capital contribution, dividend or otherwise) or (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 -------- ---- Loans are then outstanding and (ii) as to any of the foregoing, unless waived in writing by Lender, Borrower and Guarantor shall take such actions as are deemed necessary by Lender to perfect the security interest of Lender in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments; (c) the guarantee by Guarantor of the Obligations of Borrower in favor of Lender; (d) the existing equity investments of Borrower and Guarantor in its Subsidiaries as set forth on Schedule 7.1 to the Information Certificate and the existing investment of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C., provided, that, in each case, Borrower and Guarantor shall -------- ---- not have any obligation to make any other or further investment or incur any liability in connection with any such investment; (e) stock or obligations issued to Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due Accounts; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral Agent, upon Lender's request, together with such stock power, assignment or endorsement by Borrower or Guarantor as Lender may request; (f) obligations of account debtors to Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, by Borrower, Guarantor or Subsidiary (as the case may be) and promptly delivered to Collateral Agent as so endorsed; (g) loans or advances by Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of 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 Borrower, Guarantor or Subsidiary, as the case may be; (h) any investments of Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, 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; (i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof; (i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require, and (C) as of the date of any such loan and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing, (ii) as of the date of any such loan by Borrower to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof; (iii) as to loans by Guarantor to Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and Borrower, and (C) 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; (k) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate, provided, that, as to such loans, advances -------- ---- and guarantees, (i) Borrower, Guarantor, 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, 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) Borrower shall furnish to Lender all notices or demands in connection with such loans, advances or guarantees received by any Borrower, Guarantor or Subsidiary or on its behalf, promptly after the receipt thereof or sent by any Borrower, Guarantor or Subsidiary or on its behalf, concurrently with the sending thereof.
Appears in 3 contracts
Samples: Loan Agreement (RBX Corp), Loan Agreement (RBX Corp), Loan Agreement (RBX Industries Inc)
Loans, Investments, Guarantees, Etc. Borrower and Guarantor Borrowers shall not, ----------------------------------- and shall not permit any Subsidiary to, directly or indirectly, make or permit to exist any loans or advance money or property to any Person, or invest in (by capital contribution, dividend or otherwise) oror purchase or repurchase the 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 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 instruments constituting Cash Equivalents, which shall be delivered to Agent, upon Agent's or Lenders' request, at any time on or after an Event of Default, and prior to an Event of Default only if such investment has a maturity of more than seven (7) Business Days;
(c) purchases of Indebtedness evidenced by the Senior Subordinated Notes to the extent permitted under Section 7.3(e)(iii)(B) hereof or in connection with the Refinancing Indebtedness;
(d) equity investments of either Borrower in its existing Subsidiaries and any Subsidiaries formed or acquired after the date hereof to the extent permitted under and in accordance with Section 7.2 hereof, provided, that, (i) no -------- ---- Loans are then outstanding and (ii) as to any of the foregoing, unless waived in writing by Lender, Borrower and Guarantor shall take such actions as are deemed necessary by Lender to perfect the security interest of Lender in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) the guarantee by Guarantor of the Obligations of Borrower in favor of Lender;
(d) the existing equity investments of Borrower and Guarantor in its Subsidiaries as set forth on Schedule 7.1 to the Information Certificate and the existing investment of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C., provided, that, in each case, Borrower and Guarantor shall -------- ---- not have any obligation to make any other or further investment or incur any liability in connection with any such investment;
(e) stock or obligations issued to Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due Accounts; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral Agent, upon Lender's request, together with such stock power, assignment or endorsement by Borrower or Guarantor as Lender may request;
(f) obligations of account debtors to Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, by Borrower, Guarantor or Subsidiary (as the case may be) and promptly delivered to Collateral Agent as so endorsed;
(g) loans or advances by Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of 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 Borrower, Guarantor or Subsidiary, as the case may be;
(h) any investments of Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, 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;
(i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require, and (C) as of the date of any such loan investment and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default Default, shall exist or have occurred and be continuing,
(ii) as in no event shall the total amount of any capital contributions or other amounts paid by Borrowers to or for the date acquisition of any such loan by Borrower Subsidiaries formed or acquired after the date hereof, plus the amount of any loans to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes Subsidiaries permitted under Section 8.9(c7.5(g) hereofbelow, shall be subject to Excess Availability being exceed $500,000 in the amounts aggregate and (iii) such Subsidiary shall have executed and delivered a guarantee of the Obligations in favor of Agent and Lenders and such other agreements as are required for such payments by Guarantor under Section 8.9(c7.2 hereof;
(e) guarantees by any wholly-owned Subsidiary of either Borrower in favor of Agent and Lenders of the Obligations of either Borrower to Agent and guarantees by either Borrower in favor of Agent and Lenders of Indebtedness, if any, of such Subsidiary to Agent and Lenders;
(f) guarantees by Borrowers in favor of the person to whom any Indebtedness is owed which is permitted pursuant to Section 7.3(j) hereof;
(iiig) as to loans by Guarantor Borrowers to any wholly-owned Subsidiary of such Borrower; provided, that, (Ai) no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default exists or has occurred, (ii) in no event shall the total amount of such loans to Subsidiaries formed or acquired after the date hereof, plus the amount of any capital contributions or other amounts paid by Borrowers to or for the acquisition of any such Subsidiaries permitted under Section 7.5(d) above, exceed $500,000 in the aggregate at any time outstanding and (iii) the Indebtedness arising pursuant to such loan loans shall not be subject toevidenced by any promissory note or other instrument, unless the original of such note or other instrument is pledged and subordinate in right delivered to Agent (with such endorsement thereof as Agent may require);
(h) loans by any wholly-owned Subsidiary of payment toeither Borrower to such Borrower; provided, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lenderthat, (Bi) promptly upon Lender's request, Lender prior to the making of any such loans Agent shall have received a subordination agreementreceived, in form and substance satisfactory to LenderAgent, a subordination agreement by and between Agent, Lenders and such wholly-owned Subsidiary, as acknowledged and agreed to by such Borrower, providing for the terms of for, inter alia, the subordination in right of payment of any and all present and future Indebtedness and other obligations and liabilities of such Indebtedness of Borrower to its wholly-owned Subsidiary to the prior final indefeasible payment and satisfaction in full of all of the ObligationsObligations and related matters, duly authorized, executed and delivered by such Guarantor wholly- owned Subsidiary and Borrowersuch Borrower and (ii) no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default, exists or has occurred;
(i) obligations owing to Borrowers from purchasers of specific fixed assets of Borrowers pursuant to a Sale-Leaseback Transaction evidenced by a promissory note payable by such purchaser to the order of Borrowers; provided, that, (i) the total aggregate amount of such obligations at any one time outstanding shall not exceed $5,000,000, (ii) Agent shall have received not less than ten (10) Business Days prior written notice of any such proposed transaction which notice shall set forth in reasonable detail the terms of such Sale-Leaseback Transaction and such obligations, (iii) Agent and Lenders shall have received such information with respect thereto as Agent or Lenders may request, (iv) Agent shall have received true, correct and complete copies of all agreements, documents and instruments relating to such Sale-Leaseback Transaction, (v) upon Agent's or Lenders' request, Borrowers shall deliver or cause to be delivered to Agent, any promissory note or other instrument evidencing such obligations, with an appropriate endorsement or assignment and with full recourse to the Borrower who is the payee thereof, and (Cvi) Borrower shall not, directly or indirectly makeno Event of Default, or be required act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred;
(j) stock or obligations issued to make, Borrowers by any payments Person (or the representative of such Person) in respect of Indebtedness of such Indebtedness Person owing to 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 Agent, upon Agent's or Lenders' request (together with such stock power, assignment or endorsement by Borrowers as Agent or Lenders may request) at any time on or after an Event of Default and prior to the end an Event of the then current term of this AgreementDefault if such stock or instrument has a fair market value greater than $500,000;
(k) obligations of Account Debtors to Borrowers arising from Accounts which are past due evidenced by a promissory note made by such Account Debtor payable to any of Borrowers; provided, that, promptly upon the receipt of the original of any such promissory note by any of Borrowers, such promissory note shall be endorsed to the order of Agent by the Borrower who is the payee and promptly delivered to Agent as so endorsed at any time on or after an Event of Default and prior to an Event of Default if the aggregate amount of all such notes exceeds $250,000;
(l) loans of money or property to any Person, or investment by capital contribution in any Person or guarantee of the Indebtedness of any Person (other than as otherwise permitted above); provided, that, (i) the total aggregate amount of any such loans, investments or guarantees shall not exceed $1,500,000 at any time outstanding, (ii) no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred, (iii) in the case of an investment by capital contribution, at Agent's or Lenders' option, the original of any stock or other instrument evidencing such capital contribution shall be promptly delivered to Agent, together with such stock power, assignment or endorsement as Agent may request, (iv) 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 Agent, at Agent's or Lenders' option, together with an appropriate endorsement and with full recourse to the Borrower or other payee thereof, (v) in the event any such loan, investment or guarantee exceeds $300,000 or all such loans, investments and guarantees then outstanding exceed $300,000 in the aggregate, Agent shall have received (A) not less than one (1) Business Day 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 Agent or Lenders may request;
(m) the existing loans, advances investments and guarantees set forth on Schedule 8.10 to the Information Certificate, provided, that, as to such loans, advances -------- ---- and guarantees, (i) Borrower, Guarantor, 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, 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) Borrower shall furnish to Lender all notices or demands in connection with such loans, advances or guarantees received by any Borrower, Guarantor or Subsidiary or on its behalf, promptly after the receipt thereof or sent by any Borrower, Guarantor or Subsidiary or on its behalf, concurrently with the sending thereofExhibit K hereto.
Appears in 2 contracts
Samples: Loan and Security Agreement (Pamida Inc /De/), Loan and Security Agreement (Pamida Holdings Corp/De/)
Loans, Investments, Guarantees, Etc. Borrower and Guarantor Guarantors shall not, ----------------------------------- and shall not permit any Subsidiary of their Subsidiaries to, directly or indirectly, make or permit to exist any loans or advance money or property to any Personperson, or invest in (by capital contribution, dividend or otherwise) oror 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 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, providedPROVIDED, thatTHAT, (i) no -------- ---- Loans are then outstanding and (ii) as to any of the foregoing, unless waived in writing by Lender, Borrower and Guarantor shall take such actions as are deemed necessary by Lender to perfect the security interest of Lender in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) the guarantee guarantees by Guarantor Holdings and Subsidiaries of Borrower of the Obligations of Borrower in favor of Lender;
(d) the existing equity investments investment of Borrower and Guarantor as of the date hereof in its Subsidiaries as set forth on Schedule 7.1 to of the Information Certificate and the existing investment of Borrower (as successor by merger to Rubatex) in NeoCork Technologiesdate hereof, L.L.C.PROVIDED, provided, that, in each caseTHAT, Borrower and Guarantor shall -------- ---- not have any no obligation to make any other investment in, or further investment loans to, or incur any liability other payments in connection with respect of, any such investmentSubsidiaries;
(e) loans by any Subsidiary of Borrower to Borrower to the extent the Indebtedness arising from such loans is permitted under Section 9.9 above;
(f) stock or obligations issued to Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due AccountsPerson; providedPROVIDED, thatTHAT, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral AgentLender, upon Lender's request, together with such stock power, assignment or endorsement by Borrower or Guarantor as Lender may request;
(f) obligations of account debtors to Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, by Borrower, Guarantor or Subsidiary (as the case may be) and promptly delivered to Collateral Agent as so endorsed;and
(g) loans or advances by Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of 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 Borrower, Guarantor or Subsidiary, as the case may be;
(h) any investments of Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, 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;
(i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require, and (C) as of the date of any such loan and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any such loan by Borrower to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof;
(iii) as to loans by Guarantor to Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and Borrower, and (C) 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;
(k) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate9.10 hereto; PROVIDED, provided, thatTHAT, as to such loans, advances -------- ---- and guarantees, (i) Borrower, Guarantor, or their respective Subsidiaries, as the case may be, Borrower and Guarantors 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, if such amendment, modification, alteration, or change would cause the terms of such loans, advances, or guarantees or of any agreement, document or instrument related thereto to be more favorable to the counterparty of such loans, advances and guarantees, or (B) as to such guarantees, redeem, retire, defease, purchase or otherwise acquire the obligations arising pursuant to such guarantee guarantees, 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) purpose, and (ii) Borrower and Guarantors shall furnish to Lender all notices or demands in connection with such loans, advances or guarantees or other Indebtedness subject to such guarantees either received by any Borrower, Guarantor or Subsidiary Borrower or on its behalf, promptly after the receipt thereof thereof, or sent by any Borrower, Guarantor or Subsidiary Borrower or on its behalf, concurrently with the sending thereof., as the case may be;
Appears in 2 contracts
Samples: Loan and Security Agreement (Anvil Holdings Inc), Loan and Security Agreement (Anvil Knitwear Inc)
Loans, Investments, Guarantees, Etc. Neither Parent nor any Borrower and Guarantor shall, nor shall not, ----------------------------------- and shall not it permit any Subsidiary its Subsidiaries to, directly or indirectly, make or permit to exist any loans or advance money or property to any Personperson, or invest in (by capital contribution, dividend or otherwise) oror purchase or repurchase the 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 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, ; provided, that, (i) no -------- ---- Loans are then outstanding and (ii) as to any Cash Equivalents that are of the foregoinga type constituting Collateral, unless waived in writing by Lender, a Borrower and or Guarantor shall take such actions as are deemed necessary by Lender to perfect the security interest of Lender in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
; (c) the guarantee by Guarantor of the Obligations of Borrower in favor of Lender;
(d) the existing equity investments of Borrower and Guarantor in its Subsidiaries as guarantees set forth on Schedule 7.1 to in the Information Certificate and guarantees of the existing investment Obligations or the Senior Notes; (d) acquisitions of Borrower or investments in (i) Subsidiaries of Parent which are Borrowers or Guarantors on the date hereof or (ii) any Person which become a Subsidiary of Parent as successor by merger to Rubatex) in NeoCork Technologiesa result of such acquisition or investment, L.L.C., provided, that, in each case, Borrower and Guarantor shall -------- ---- not have any obligation to make any other or further investment or incur any liability provided that in connection with any such acquisition or investment;
(e) stock or obligations issued to Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due Accounts; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral Agent, upon Lender's request, together with such stock power, assignment or endorsement by Borrower or Guarantor as Lender may request;
(f) obligations of account debtors to Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, by Borrower, Guarantor or Subsidiary (as the case may be) and promptly delivered to Collateral Agent as so endorsed;
(g) loans or advances by Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of 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 Borrower, Guarantor or Subsidiary, as the case may be;
(h) any investments of Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, such -------- ---- arrangements are with banks new Subsidiary either becomes a Borrower hereunder or other financial institutions that have combined capital guarantees the Obligations and surplus and undivided profits of not less than $250,000,000 and are not for speculative purposes and are unsecured;
(i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide grants to Lender a report first priority security interest in all of its property of the type that would constitute Collateral if such Subsidiary were a Borrower hereunder, pursuant to documentation in form and substance satisfactory to Lender Lender, and provided that no Event of the outstanding amount Default shall have occurred and be continuing after giving effect to such acquisition of or investment in such loans as of the last day of the immediately preceding month and indicating Subsidiary; (e) any loans made and payments received during the immediately preceding monthloan, (B) the Indebtedness arising pursuant to any such loan shall not be evidenced by a promissory note advance, investment, or other instrument, unless the single original of such note or other instrument is promptly delivered to Lender 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 Lender may require, and (C) as of the date of any such loan and transaction described above if after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have has occurred and be continuing,
(ii) as of is continuing and the date of any such loan by Borrower to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making aggregate amount of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes transactions and all payments permitted under Section 8.9(c9.11(g) hereof, shall be subject since the date hereof is less than the Permitted Payment Amount; (f) obligations incurred to Excess Availability being fix the interest rate on any variable rate indebtedness permitted hereunder; (g) investments in securities of customers received pursuant to any plan of reorganization or similar arrangement upon the amounts required for bankruptcy or insolvency of such payments by Guarantor customers; (h) investments as a result of consideration received in an Asset Sale permitted under Section 8.9(c) hereof;
(iii) as to loans by Guarantor to Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and Borrower, and (C) 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;
(k) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate, provided, that, as to such loans, advances -------- ---- and guarantees, 9.7; (i) Borrower, Guarantor, 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, 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) Borrower shall furnish to Lender all notices or demands in connection with such loans, advances or guarantees received by any Borrower, Guarantor or Subsidiary or on its behalf, promptly after the receipt thereof or sent by any Borrower, Guarantor or Subsidiary or on its behalf, concurrently with the sending thereof.investments in
Appears in 2 contracts
Samples: Loan and Security Agreement (Atlantic Express Transportation Corp), Loan and Security Agreement (Atlantic Express Transportation Corp)
Loans, Investments, Guarantees, Etc. Each Borrower and Guarantor shall not, ----------------------------------- and shall not permit any Subsidiary to, directly or indirectly, make or permit to exist any loans or advance money or property to any Person, or invest in (by capital contribution, dividend or otherwise) oror 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 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, providedPROVIDED, thatTHAT, (i) no -------- ---- Loans are then outstanding and (ii) as to any of the foregoing, unless waived in writing by Lender, each Borrower and Guarantor shall take such actions as are deemed necessary by Lender to perfect the security interest of Lender in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) the guarantee by each Borrower and Guarantor of the Obligations of any Borrower in favor of Lender;
(d) the existing equity investments of Borrower (i) Waxman Industries in Waxman USA (ii) Waxman USA in Waxman Group, WOC and Guarantor TWI, (iii) TWI in its Subsidiaries as set forth on Schedule 7.1 to the Information Certificate WAMI, TWI International Taiwan, Inc. and the existing investment of Borrower WAMI Sales, (as successor by merger to Rubatexiv) WAMI in NeoCork TechnologiesCohart de Mexico S.A. de C.V., L.L.C.(v) TWI International Taiwan, providedInc. in CWI International China Ltd. and Premier Faucet Corporation Hong Kong Limited, that, and (vi) Premier Faucet Corporation Hong Kong Limited in each case, Borrower and Guarantor shall -------- ---- not have any obligation to make any other or further investment or incur any liability in connection with any such investmentPremier Faucet Corporation Shenzen Co.;
(e) loans by any Subsidiary of Borrowers or Guarantors (but not Borrowers) to any other Subsidiary of Borrowers or Guarantors; PROVIDED, THAT, as to any such loan, (i) each month Guarantors shall provide to Lender a report in form and substance reasonably satisfactory to Lender of the amount of such loans made in the immediately preceding month and any repayments in connection therewith, (ii) the Indebtedness arising pursuant to any such loan shall not be evidenced by a promissory note or other instrument, unless, if the loan is made by any Guarantor, the single original of such note or other instrument is delivered to Lender to hold as part of the Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Lender may reasonably require and (iii) the Indebtedness arising pursuant to such loans is permitted under Section 9.9 hereof;
(f) loans by any Borrower to any other Borrower or Waxman USA to the extent permitted under Section 9.12 hereof; PROVIDED, THAT, as to any such loan, (i) each month Borrowers shall provide to Lender a report in form and substance reasonably satisfactory to Lender of the amount of such loans made in the immediately preceding month and any repayments in connection therewith, (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 Lender to hold as part of the Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Lender may reasonably require and (iii) the Indebtedness arising pursuant to such loans is permitted under Section 9.9 hereof;
(g) stock or obligations issued to any Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due Accounts; providedPROVIDED, thatTHAT, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral AgentLender, upon Lender's request, together with such stock power, assignment or endorsement by such Borrower or Guarantor as Lender may request;
(fh) obligations of account debtors to any Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to such Borrower, Guarantor or Subsidiary (as the case may be); providedPROVIDED, thatTHAT, promptly upon the -------- ---- receipt of the original of any such promissory note by such Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral AgentLender, by such Borrower, Guarantor or Subsidiary (as the case may be) and promptly delivered to Collateral Agent Lender as so endorsed;
(gi) 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 $300,000 500,000 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;
(hj) unsecured guarantees by any Borrower or Guarantor of the Indebtedness of any Borrower, Guarantor or any of their respective Subsidiaries permitted under Section 9.9(b) hereof;
(k) any investments of any Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates providedPROVIDED, thatTHAT, such -------- ---- arrangements are with banks or other financial institutions that have combined capital and surplus and undivided profits of not less than $250,000,000 100,000,000 and are not for speculative purposes and are unsecured;
(il) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is not otherwise permitted underunder this Section 9.10, loans and in all respects subject advances by any Borrower, Guarantor or any of their respective Subsidiaries to, Section 8.9 hereofor other investments in, as such guarantee is in effect on the date hereof;
any Person (including Subsidiaries of any Borrower or Guarantor and employees, officers and directors of any Borrower, Guarantor or any Subsidiary); PROVIDED, THAT, (i) as to of the date of any such loan, advance or other investment, and after giving effect thereto, no Event of Default shall exist or have occurred and be continuing, (ii) the aggregate amount of all of such loans, (A) within thirty (30) days advances and investments, after the end giving effect to any repayment of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender of the outstanding amount of any such loans as of the last day of the immediately preceding month or advances, shall not exceed $500,000 at any time outstanding and indicating any loans made and payments received during the immediately preceding month, (Biii) 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 Lender 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 Lender may reasonably require;
(m) unsecured guarantees by any Borrower, and (C) as Guarantor or any of their respective Subsidiaries of the date obligations of any such loan and after giving effect theretoBorrower, no Event of Default, Guarantor or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as of the date other Subsidiary of any such loan by Borrower to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by or Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted leases which are not prohibited under Section 8.9(c) hereofthis Agreement, except no Borrower shall be subject to Excess Availability being in the amounts required for such payments by guarantee any obligations of any Subsidiary of any Borrower or Guarantor under Section 8.9(c) hereofwhich is not a Borrower or Guarantor;
(iiin) as any Borrower or Guarantor (or any of their respective Subsidiaries) may acquire and hold receivables owing to loans by Guarantor to Borrower, (A) them in the Indebtedness arising pursuant to such loan shall be subject to, ordinary course of business and subordinate payable or dischargeable in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and Borrower, and (C) 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 Agreementaccordance with customary trade terms;
(ko) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate9.10 hereto, providedPROVIDED, thatTHAT, as to such loans, advances -------- ---- and guarantees, (i) BorrowerBorrowers, GuarantorGuarantors, 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, 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) Borrower Borrowers shall furnish to Lender all notices of default or demands in connection with such loans, advances or guarantees received by any a Borrower, Guarantor or Subsidiary or on its behalf, promptly after the receipt thereof or sent by any Borrower, Guarantor or Subsidiary or on its behalf, concurrently with the sending thereof.
Appears in 2 contracts
Samples: Loan and Security Agreement (Waxman Industries Inc), Loan and Security Agreement (Waxman Industries Inc)
Loans, Investments, Guarantees, Etc. Borrower and Guarantor shall not, ----------------------------------- and shall not permit any Subsidiary to, directly or indirectly, make or permit to exist any loans or advance money or property to any Personperson, or invest in (by capital contribution, dividend or otherwise) oror purchase or repurchase the 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
(a) the endorsement of instruments for collection or deposit in the ordinary course of business;
; (b) investments in cash in: (i) short-term direct obligations of the United States Government, (ii) negotiable certificates of deposit issued by any bank satisfactory to Lender, payable to the order of the Borrower or Cash Equivalentsto bearer and delivered to Lender, and (iii) commercial paper rated A1 or P1; provided, that, (i) no -------- ---- Loans are then outstanding and (ii) as to any of the foregoing, unless waived in writing by Lender, Borrower and Guarantor shall take such actions as are deemed necessary by Lender to perfect the security interest of Lender in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) voluntary payments in the guarantee ordinary course of business in accordance with past practices made by Guarantor Borrower to SunTrust on behalf of the Obligations of Borrower in favor of Lender;
(d) the existing equity investments of Borrower Borrower's distributors and Guarantor in its Subsidiaries as set forth on Schedule 7.1 to the Information Certificate and the existing investment of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C., provided, that, in each case, Borrower and Guarantor shall -------- ---- not have any obligation to make any other or further investment or incur any liability in connection with any such investment;
(e) stock or obligations issued to Borrower or Guarantor by any Person (or the representative of such Person) franchisees in respect of Indebtedness or other defaulted obligations of such Person owing distributors and franchisees owed to Borrower SunTrust arising under SunTrust Purchased Receivables or Guarantor in connection with the insolvency, bankruptcy, receivership under loans or reorganization of such Person or a composition or readjustment of the debts of such Person or settlement or compromise of past due Accountsother financing arrangements provided by SunTrust to Borrower's distributors and franchisees; provided, that, the original no Event of any such stock -------- ---- Default, and no condition or instrument evidencing such obligations event which, with notice or lapse of time, or both, would constitute an Event of Default, shall exist or have occurred and be promptly delivered to Collateral Agent, upon Lender's request, together with such stock power, assignment continuing; (d) voluntary purchases or endorsement repurchases by Borrower in the ordinary course of business in accordance with past practices of SunTrust Purchased Receivables or Guarantor as Lender may request;
(f) obligations of account debtors loans or advances owed by Borrower's distributors and franchisees to Borrower or Guarantor (or any of their respective Subsidiaries) SunTrust arising from Accounts which are past due evidenced in connection with financing arrangements provided by a promissory note made by SunTrust directly to such account debtor payable to Borrower, Guarantor or Subsidiary (as the case may be)distributors and franchisees; provided, that, promptly upon the -------- ---- receipt no Event of the original Default, and no condition or event which, with notice or lapse of any such promissory note by Borrowertime or both would constitute an Event of Default, Guarantor shall exist or Subsidiary have occurred and be continuing; (as the case may bee) such promissory note shall be endorsed to the order mandatory repurchases of Collateral Agent, by Borrower, Guarantor or Subsidiary (as the case may be) and promptly delivered to Collateral Agent as so endorsed;
(g) loans or advances by Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of 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 Borrower, Guarantor or Subsidiary, as the case may be;
(h) any investments of Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, 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;
(i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case SunTrust Purchased Receivables to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, required under the SunTrust Financing Agreement as such guarantee is in effect on the date hereof;
, or as amended with Lender's prior written consent, (f) loans and advances by Borrower to officers and employees made after the date hereof in a manner consistent with the most recent past practices of Borrower, provided, that, (i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require, and (C) as of the date of any such loan and after giving effect thereto, no Event of Default, Default or act, condition or event which which, with notice or passage of time time, or both both, would constitute an Event of Default shall exist or have occurred and be continuing,
, (ii) as of in no event shall the date of any such loan by Borrower to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making total amount of such loan loans and advances outstanding in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof;
any one time exceed $200,000 and (iii) as in no event shall any such loans or advances outstanding to loans any one officer or employee at any one time exceed $25,000; (g) loans, investments and guarantees, not otherwise permitted under this Section 9.10, that do not exceed, in the aggregate, the sum of $250,000 made at any time after the date hereof, provided that no Event of Default or condition or event which, with notice or passage of time, or both, would constitute an Event of Default, shall exist or have occurred and be continuing; (h) acquisitions by Guarantor Borrower, in the ordinary course of business in accordance with past practices and in accordance with applicable law, of assets of distributors and franchisees who have defaulted in their obligations to Borrower; provided, that, such acquisitions are engaged in primarily for the purposes of recovering the unpaid obligations owed to Borrower through restructuring and remarketing such acquired assets; provided, further, that, at the time of acquisition, no Event of Default or condition or event which, with notice or passage of time, or both, would constitute an Event of Default, shall exist or have occurred and be continuing; (Ai) the Indebtedness arising pursuant to such loan shall be subject toguarantees, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and Borrower, and (C) 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;
(k) the existing loans, advances and guarantees investments set forth on Schedule 8.10 to in the Information Certificate, ; provided, that, as to such loans, advances -------- ---- and guarantees, (i) Borrower, Guarantor, or their respective Subsidiaries, as the case may be, Borrower 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 theretoas in effect on the date hereof, or (B) as to such guarantees, redeem, retire, defease, purchase or otherwise acquire the obligations arising pursuant to such guarantee guarantees, 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) purpose, and (ii) Borrower shall furnish to Lender all notices or demands in connection with such loans, advances guarantee or guarantees other indebtedness subject to such guarantee either received by any Borrower, Guarantor or Subsidiary Borrower or on its behalf, promptly after the receipt thereof thereof, or sent by any Borrower, Guarantor or Subsidiary Borrower or on its behalf, concurrently with the sending thereof, as the case may be.
Appears in 1 contract
Loans, Investments, Guarantees, Etc. Each Borrower and Guarantor shall not, ----------------------------------- and shall not permit any Subsidiary to, directly or indirectly, make or permit to exist any loans or advance money or property to any Person, or invest in (by capital contribution, dividend or otherwise) oror 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 Person or hold any cash or Cash Equivalents. or form or acquire any Subsidiaries, or agree to do any of the foregoing, except:
(a) guarantees by any Borrower or Guarantor of the Obligations in favor of Agent and Lenders;
(b) the endorsement of instruments for collection or deposit in the ordinary course of business;
(bc) investments in cash or Cash Equivalents, provided, that, (i) no -------- ---- Loans are then Equivalents so long as there the Loan is outstanding and (ii) as such investments are pledged and delivered to any of the foregoing, unless waived in writing by Lender, Borrower and Guarantor shall take such actions as are deemed necessary by Lender to perfect the security interest of Lender in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) the guarantee by Guarantor of the Obligations of Borrower in favor of LenderAgent upon Agent's request;
(d) the existing equity investments of each Borrower and Guarantor as of the date hereof in its respective Subsidiaries as set forth on Schedule 7.1 to of the Information Certificate and the existing investment of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C., provided, that, in each case, Borrower and Guarantor shall -------- ---- not have any obligation to make any other or further investment or incur any liability in connection with any such investmentdate hereof;
(e) stock or obligations issued to a Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due AccountsPerson; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral Agent, upon LenderAgent's request, together with such stock power, assignment or endorsement by such Borrower or Guarantor as Lender Agent may request;
(f) obligations of or account debtors to a Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to such Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by such Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, for itself and the ratable benefit of Lenders, by Borrower, Guarantor or Subsidiary (as the case may be) such Borrower and promptly delivered to Collateral Agent as so endorsed;
(g) loans or and advances by any Borrower, Guarantor or any Subsidiary to employees of their respective Subsidiaries to any of its employeessuch Borrower, after the date hereof, Guarantor or Subsidiary not to exceed the principal amount of $300,000 1,000,000 in the aggregate at any time outstanding in the ordinary course of Borrower's, Guarantor's or Subsidiary's business for reasonable for: (i) reasonably and necessary work-related travel and or other ordinary business expenses to be incurred by such employees employee in connection with their employment with work for such Borrower, Guarantor or Subsidiary, as the case may beSubsidiary and (ii) reasonable and necessary relocation expenses of such employees (including home mortgage financing for relocated employees);
(h) any investments the existing equity investment of BorrowerWIS in WIS Brasil Boucinhas Xxxxxx Inventory Service Ltda., Guarantor or any a Brazilian corporation based in Sao Paulo, Brazil, of their respective Subsidiaries which WIS owns fifty-one (51%) percent of all of the issued and outstanding shares of Capital Stock and the existing equity investment of WIS in interest rate swap agreementsJapan Asset Inventory Co. Ltd., interest rate cap agreementsa Japanese corporation, interest rate collar agreementsof which WIS owns twenty (20%) percent of all of the issued and outstanding shares of Capital Stock, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, such -------- ---- arrangements are with banks in no event shall any Borrower or Guarantor have any obligation or liability, direct or indirect, to make any further capital or other financial institutions that contributions or payments in respect of such corporations or have combined capital and surplus and undivided profits of not less than $250,000,000 and are not for speculative purposes and are unsecuredany obligation or liability in connection with such corporations;
(i) the guarantee Farmington Bond Guarantee by Borrower Huffy in favor of Prudential the Farmington Bondholder with respect to the obligations of the Indebtedness City of Guarantor Farmington, Missouri evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, Farmington Bonds as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require, and (C) as of the date of any such loan and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any such loan by Borrower to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof;
(iii) as to loans by Guarantor to Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and Borrower, and (C) 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;
(k) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate, provided, that, as to such loans, advances -------- ---- and guaranteesguarantee, (i) Borrower, Guarantor, or their respective Subsidiaries, as the case may be, Borrowers and Guarantors shall not, directly or indirectly, (A) amend, modify, alter or change the terms of such guarantee or any agreement, document or instrument related thereto, or (B) redeem, retire, defease, purchase or otherwise acquire the obligations arising pursuant to such guarantee, or set aside or otherwise deposit or invest any sums for such purpose, and (ii) Borrowers and Guarantors shall furnish to Agent all notices or demands in connection with such guarantee or the Indebtedness subject to such guarantee either received by any material Borrower or Guarantor or on its behalf, promptly after the receipt thereof, or sent by any Borrower or Guarantor or on its behalf, concurrently with the sending thereof, as the case may be;
(j) loans by any Borrower to any other Borrower to the extent the Indebtedness of such Borrower arising pursuant to such loans are permitted under Section 7.03(g);
(k) loans by any Guarantor or any Subsidiary of any Guarantor to any Borrower to the extent the Indebtedness of such Borrower to such Guarantor (or Subsidiary) arising pursuant to such loans is permitted under Section 7.03(h) hereof;
(l) loans by any Guarantor to any other Guarantor to the extent the Indebtedness of such Guarantor to such Borrower arising pursuant to such loans is permitted under Section 7.03(i) hereof;
(m) unsecured guarantees by any Borrower, Guarantor or any of their respective Subsidiaries of the obligations of any Borrower, Guarantor or other Subsidiary of any Borrower or Guarantor to any third party with respect to leases of real property or personal property in the ordinary course of business and such other unsecured guarantees, provided, that, (i) the aggregate amount of the liability of all Borrowers pursuant to such other unsecured guarantees shall not exceed $250,000 in the aggregate and (ii) as to all such guarantees, no Borrower shall guarantee any obligations of any Subsidiary of any Borrower or Guarantor which is not a Borrower or Guarantor;
(n) loans by any Borrower to senior management employees of such Borrower in connection with a proposed Business Unit Sale of the assets or Capital Stock of such Borrower, provided, that, (i) promptly upon Agent's request, Borrowers shall provide to Agent a copy or the original of all agreements evidencing or relating to such arrangements, including the original of any note evidencing the Indebtedness arising pursuant to such loans, and such other information with respect thereto as Agent may request, and (ii) the aggregate amount of such loans, together with the amounts which Borrowers may be required to pay (whether contingent upon a Business Unit Sale or otherwise) pursuant to the severance arrangements and retention agreements permitted under Section 7.03(l) hereof, shall not exceed the amount allowed for such obligations set forth in Section 1.28(e) of the Intercreditor Agreement to be paid for from the Net Available Proceeds from such Business Unit Sale;
(o) the existing loans, advances and guarantees by any Borrower and Guarantor outstanding as of the date hereof as set forth on Schedule 7.04 hereto; provided, that, as to such loans, advances and guarantees, (i) such Borrower and Guarantor shall not, directly or indirectly, (A) amend, modify, alter or change the terms of such 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 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) Borrower Borrowers and Guarantor shall furnish to Lender Agent all notices or demands in connection with such loans, advances or guarantees either received by any Borrower, Borrower or Guarantor or Subsidiary or on its behalf, promptly after the receipt thereof thereof, or sent by any Borrower, Borrower or Guarantor or Subsidiary or on its behalf, concurrently with the sending thereof, as the case may be.
Appears in 1 contract
Samples: Credit Agreement (Huffy Corp)
Loans, Investments, Guarantees, Etc. Each Borrower and Guarantor shall not, ----------------------------------- and shall not permit any Subsidiary to, directly or indirectly, make or permit to exist any loans or advance money or property to any Person, or invest in (by capital contribution, dividend or otherwise) oror 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 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, providedPROVIDED, thatTHAT, (i) no -------- ---- Loans are then outstanding and (ii) as to any of the foregoing, unless waived in writing by Lender, each Borrower and Guarantor shall take such actions as are deemed necessary by Lender to perfect the security interest of Lender Lenders in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) the guarantee guarantees by each Borrower and Guarantor of the Obligations of any Borrower in favor of Lender;
(d) the existing equity investments loans by a Borrower, Guarantor or any Subsidiary of Borrower and Guarantor in its Subsidiaries as set forth on Schedule 7.1 to the Information Certificate and the existing investment of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C., provided, that, in each case, Borrower and Guarantor shall -------- ---- not have any obligation to make any other or further investment or incur any liability in connection with any such investment;
(e) stock or obligations issued to a Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due Accounts; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral Agent, upon Lender's request, together with such stock power, assignment or endorsement by Borrower or Guarantor as Lender may request;
(f) obligations of account debtors to Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to Borrower, Guarantor or Subsidiary (as of a Borrower or Guarantor after the case may be); provided, that, promptly upon the -------- ---- receipt last day of the original of any such promissory note by Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed month immediately prior to the order of Collateral Agent, by Borrower, Guarantor or Subsidiary (as the case may be) and promptly delivered to Collateral Agent as so endorsed;
(g) loans or advances by Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of Borrower'sPROVIDED, 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 Borrower, Guarantor or Subsidiary, as the case may be;
(h) any investments of Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, 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;
(i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;THAT,
(i) as to all of such loans, (A) within thirty forty-five (3045) days after the end of each fiscal month, Borrower Borrowers shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require, and (C) as of the date of any such loan and after giving effect thereto, the Borrower or Guarantor making such loan shall be Solvent, (D) no Event loan shall be made by either Borrower to Terminals and (E) as of Defaultthe date of any such loan and after giving effect thereto, no Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any such loan by Borrower to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof;
(iii) as to loans by a Guarantor or any Subsidiary of a Guarantor (other than a Borrower) 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 Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, 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, and (C) such Borrower shall not, directly or indirectly make, or be required to make, any payments in respect of such Indebtedness;
(iii) as to loans by Chemicals to a Subsidiary of Parent (other than Borrowers and Terminals) in no event shall the aggregate amount of all such loans outstanding at any time exceed $1,500,000;
(iv) as to loans by Marketing to a Subsidiary of Parent (other than Borrowers and Terminals) in no event shall the aggregate amount of all such loans outstanding at anytime exceed $13,500,000;
(v) as to loans by a Borrower to Parent, as of the date of any such loan and after giving effect thereto, the aggregate amount of the Excess Availability of Borrowers shall be not less than $1,000,000 and in no event shall the aggregate amount of all such loans to Parent exceed $3,000,000;
(vi) as to such loans by a Subsidiary of a Guarantor (other than a Borrower) to a Guarantor, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, and (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of such Guarantor to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Subsidiary and such Guarantor;
(e) subject to Section 9.10(d) above and Section 9.12 below, any Borrower or Guarantor (or any of their respective Subsidiaries) may acquire and hold receivables owing to them in the ordinary course of business and payable or dischargeable in accordance with customary trade terms;
(f) 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;
(g) stock or obligations issued to any Borrower, Guarantor or Subsidiary by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to any Borrower, Guarantor 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 end amount or value of all of such stock and instruments in the aggregate is greater than $100,000, and after an Event of Default, regardless of the then current term amount or value thereof, the original of this Agreementany such stock or instrument evidencing such obligations to a Borrower, Guarantor or any Subsidiary shall be promptly delivered to Lender, upon Lender's request, together with such stock power, assignment or endorsement by such Borrower, Guarantor or Subsidiary or as Lender may request;
(h) obligations of account debtors to any Borrower, Guarantor or Subsidiary arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to such Borrower, Guarantor or Subsidiary, as the case may be; PROVIDED, THAT, prior to an Event of Default, if 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 a Borrower Guarantor or any Subsidiary such promissory note shall be endorsed to the order of Lender by such Borrower Guarantor or any Subsidiary and promptly delivered to Lender as so endorsed;
(i) 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 $25,000 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;
(j) unsecured guarantees by any Borrower or Guarantor of the Indebtedness of any Borrower, Guarantor or any of their respective Subsidiaries permitted under Section 9.9(b) hereof;
(k) any investments of any Borrower, Guarantor or any of their respective Subsidiaries in 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, such arrangements are with banks or other financial institutions that have combined capital and surplus and undivided profits of not less than the $250,000,000 and are not for speculative purposes and are unsecured;
(l) the guarantee by Parent in favor of SASOL with respect to the obligations of Marketing to SASOL pursuant to the terms of the Asset Purchase Agreement, dated May 23, 2001, by and among Parent, Marketing and SASOL (as in effect on the date hereof);
(m) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate9.10 hereto, providedPROVIDED, that, as to such loans, advances -------- ---- and guarantees, (i) BorrowerBorrowers, GuarantorGuarantors, 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, 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) Borrower Borrowers shall furnish to Lender all notices or demands in connection with such loans, advances or guarantees received by any a Borrower, Guarantor or Subsidiary or on its behalf, promptly after the receipt thereof or sent by any Borrower, Guarantor or Subsidiary or on its behalf, concurrently with the sending thereof.
Appears in 1 contract
Loans, Investments, Guarantees, Etc. Each Borrower and Guarantor shall not, ----------------------------------- and shall not permit any Subsidiary to, directly or indirectly, make or permit to exist any loans or advance money or property to any Person, or invest in (by capital contribution, dividend or otherwise) oror 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 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 (i) cash or Cash Equivalents, providedPROVIDED, that, (i) no -------- ---- Loans are then outstanding and (ii) as to any of the foregoing, unless waived in writing by Lender, each Borrower and Guarantor shall take such actions as are deemed necessary by Lender to perfect the security interest of Lender in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) the guarantee by each Borrower and Guarantor of the Obligations of Borrower in favor of Lender;
(d) the existing equity investments guarantee by Play By Play of Borrower and Guarantor in its Subsidiaries as set forth on Schedule 7.1 to the Information Certificate and the existing investment obligations (i) of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C., provided, that, in each case, Borrower and Guarantor shall -------- ---- not have any obligation to make any other or further investment or incur any liability in connection with any such investment;
(e) stock or obligations issued to Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person Mr. Connor Kim owing to Borrower or Guarantor Bank of America in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person or settlement or compromise of past due Accounts; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral Agent, upon Lender's request, together with such stock power, assignment or endorsement by Borrower or Guarantor as Lender may request;
(f) obligations of account debtors to Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, by Borrower, Guarantor or Subsidiary (as the case may be) and promptly delivered to Collateral Agent as so endorsed;
(g) loans or advances by Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, an amount not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of Borrower's75,000, Guarantor's or Subsidiary's business for reasonable and necessary work-related travel and other ordinary business expenses xxx (xx) xf Caribe to be incurred by such employees in connection with their employment with Borrower, Guarantor or SubsidiaryHamilton National Bank, as the case may be;
(h) any investments of Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, 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;
(i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect it exists on the date hereof;
(x) xxxxx by Guarantor to any Borrower after the date hereof; PROVIDED, THAT, as to any such loan, (i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower month Guarantor shall provide to Lender a report in form and substance reasonably satisfactory to Lender of the outstanding amount of such loans as of the last day of made in the immediately preceding month and indicating any repayments in connection therewith, (ii) the Indebtedness arising pursuant to any such loan shall not be evidenced by a promissory note or other instrument, unless, if the loan is made by any Guarantor, the single original of such note or other instrument is delivered to Lender to hold as part of the Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Lender may reasonably require and (iii) the Indebtedness arising pursuant to such loans is permitted under Section 9.9 hereof;
(i) loans by any Borrower to any Subsidiary (which is not a Borrower) or to Guarantor or (ii) loans made by any Borrower to Guarantor to the extent permitted under Section 9.12 hereof; PROVIDED, THAT, as to any such loan, (A) each month Borrowers shall provide to Lender a report in form and payments received during substance reasonably satisfactory to Lender of the amount of such loans made in the immediately preceding monthmonth and any repayments in connection therewith, (B) 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 Lender 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 Lender may reasonably require, and (C) the Indebtedness arising pursuant to such loans is permitted under Section 9.9 hereof, (D) as of the date of the making of any such loan and after giving effect thereto, no Event of Default, Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any such loan by Borrower to Guarantoroccurred, and after giving effect thereto(E) the aggregate principal amount of all such loans, the Excess Availability outstanding at anytime shall be not less than exceed $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof2,000,000;
(iiig) as any Borrower or Guarantor (or any of their respective Subsidiaries) may acquire and hold receivables owing to loans by Guarantor to Borrower, (A) them in the Indebtedness arising pursuant to such loan shall be subject to, ordinary course of business and subordinate payable or dischargeable in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and Borrower, and (C) 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 Agreementaccordance with customary trade terms;
(kh) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate9.10 hereto, providedPROVIDED, thatTHAT, as to such loans, advances -------- ---- and guarantees, (i) BorrowerBorrowers, Guarantor, 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, 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) Borrower Borrowers shall furnish to Lender all notices of default or demands in connection with such loans, advances or guarantees either received by any a Borrower, Guarantor or Subsidiary or on its behalf, promptly after the receipt thereof or sent by any Borrower, Guarantor or Subsidiary a Borrower or on its behalf, concurrently with the sending thereof, as the case may be;
(i) the existing equity investment of Borrowers in their respective Subsidiaries as of the date hereof.
Appears in 1 contract
Samples: Loan and Security Agreement (Play by Play Toys & Novelties Inc)
Loans, Investments, Guarantees, Etc. Borrower and Guarantor Borrowers shall not, ----------------------------------- and shall not permit any Subsidiary to, directly or indirectly, make or permit to exist any loans or advance money or property to any Personperson, or invest in (by capital contribution, dividend or otherwise) or
or purchase or repurchase the 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 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, provided, that, in: (i) no -------- ---- Loans are then outstanding and short-term direct obligations of the United States Government, (ii) negotiable certificates of deposit issued by any bank satisfactory to Lender, payable to the order of any Borrower or to bearer and delivered to Lender, and (iii) commercial paper rated A1 or P1; PROVIDED, THAT, as to any of the foregoing, unless waived in writing by Lender, Borrower and Guarantor Borrowers shall take such actions as are deemed necessary by Lender to perfect the security interest of Lender in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) loans to employees pursuant to the guarantee by Guarantor Company's employee stock option plan to fund the exercise of options under such plan so long as the Obligations of Borrower in favor of Lender;
aggregate amount outstanding on all such loans does not at any time exceed $250,000 and (d) the existing equity investments of Borrower and Guarantor in its Subsidiaries as set forth on Schedule 7.1 to the Information Certificate and the existing investment of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C., provided, that, in each case, Borrower and Guarantor shall -------- ---- not have any obligation to make any other or further investment or incur any liability in connection with any such investment;
(e) stock or obligations issued to Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due Accounts; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral Agent, upon Lender's request, together with such stock power, assignment or endorsement by Borrower or Guarantor as Lender may request;
(f) obligations of account debtors to Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, by Borrower, Guarantor or Subsidiary (as the case may be) and promptly delivered to Collateral Agent as so endorsed;
(g) loans or advances by Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of 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 Borrower, Guarantor or Subsidiary, as the case may be;
(h) any investments of Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, 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;
(i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require, and (C) as of the date of any such loan and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any such loan by Borrower to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof;
(iii) as to loans by Guarantor to Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and Borrower, and (C) 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;
(k) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate9.10 hereto; PROVIDED, provided, thatTHAT, as to such loans, advances -------- ---- and guarantees, (i) Borrower, Guarantor, or their respective Subsidiaries, as the case may be, Borrowers 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, or (B) as to such guarantees, redeem, retire, defease, purchase or otherwise acquire the obligations arising pursuant to such guarantee guarantees, 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) purpose, and (ii) Borrower Borrowers shall furnish to Lender all notices or demands in connection with such loans, advances or guarantees or other indebtedness subject to such guarantees either received by any Borrower, Guarantor or Subsidiary Borrowers or on its their behalf, promptly after the receipt thereof thereof, or sent by any Borrower, Guarantor or Subsidiary Borrowers or on its their behalf, concurrently with the sending thereof, as the case may be.
Appears in 1 contract
Loans, Investments, Guarantees, Etc. Neither Borrower and Guarantor nor any of its subsidiaries shall not, ----------------------------------- and shall not permit any Subsidiary to, directly or indirectly, make or permit to exist any loans or advance money or property to any Personperson, or invest in (by capital contribution, dividend or otherwise) oror purchase or repurchase the 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 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 in: (i) short-term direct obligations of the United States Government, (ii) negotiable certificates of deposit issued by any bank satisfactory to Lender, payable to the order of the Borrower or Cash Equivalentsa subsidiary or to bearer and delivered to Lender, and (iii) commercial paper rated A1 or P1; provided, that, (i) no -------- ---- Loans are then outstanding and (ii) as to any of the foregoingforegoing owned by Borrower, unless waived in writing by Lender, Borrower and Guarantor shall take such actions as are deemed necessary by Lender to perfect the security interest of Lender in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
; (c) the guarantee by Guarantor of the Obligations of Borrower in favor of Lender;
(d) the existing equity investments of Borrower and Guarantor in its Subsidiaries as set forth on Schedule 7.1 to the Information Certificate and the existing investment of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C., provided, that, in each case, Borrower and Guarantor shall -------- ---- not have any obligation to make any other or further investment or incur any liability in connection with any such investment;
(e) stock or obligations issued to Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due Accounts; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral Agent, upon Lender's request, together with such stock power, assignment or endorsement by Borrower or Guarantor as Lender may request;
(f) obligations of account debtors to Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, by Borrower, Guarantor or Subsidiary (as the case may be) and promptly delivered to Collateral Agent as so endorsed;
(g) loans or advances by Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of 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 Borrower, Guarantor or Subsidiary, as the case may be;
(h) any investments of Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, 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;
(i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require, and (C) as of the date of any such loan and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any such loan by Borrower to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof;
(iii) as to loans by Guarantor to Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and Borrower, and (C) 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;
(k) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate, 9.10 hereto; provided, that, as to such loans, advances -------- ---- and guarantees, (i) Borrower, Guarantor, Borrower or their respective Subsidiaries, as the case may be, applicable subsidiary 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, or (B) as to such guarantees, redeem, retire, defease, purchase or otherwise acquire the obligations arising pursuant to such guarantee guarantees, 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) purpose, and (ii) Borrower shall furnish to Lender all notices or demands in connection with such loans, advances or guarantees or other indebtedness subject to such guarantees either received by any Borrower, Guarantor Borrower or Subsidiary the applicable subsidiary or on its behalf, promptly after the receipt thereof thereof, or sent by any Borrower, Guarantor Borrower or Subsidiary the applicable subsidiary or on its behalf, concurrently with the sending thereof, as the case may be; and (d) loans and advances to employees in the ordinary course of business in an unpaid principal amount not exceeding $50,000 individually or $100,000 in the aggregate at any time.
Appears in 1 contract
Loans, Investments, Guarantees, Etc. Neither Parent nor any Borrower and Guarantor shall, nor shall not, ----------------------------------- and shall not it permit any Subsidiary its Subsidiaries to, directly or indirectly, make or permit to exist any loans or advance money or property to any Person, or invest in (by capital contribution, dividend or otherwise) or
(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 -------- ---- Loans are then outstanding and (ii) as to any Cash Equivalents that are of the foregoinga type constituting Collateral, unless waived in writing by Lender, a Borrower and or Guarantor shall take such actions as are deemed necessary by Lender to perfect the security interest of Lender in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
; (c) the guarantee by Guarantor of the Obligations of Borrower in favor of Lender;
(d) the existing equity investments of Borrower and Guarantor in its Subsidiaries as guarantees set forth on Schedule 7.1 to in the Information Certificate and guarantees of the existing investment Obligations or the Senior Notes; (d) acquisitions of Borrower or investments in (i) Subsidiaries of Parent which are Borrowers or Guarantors on the date hereof or (ii) any Person which is to become a Subsidiary of Parent as successor by merger to Rubatexa result of such acquisition or investment, provided that any such acquisition is permitted under clause (e) in NeoCork Technologies, L.L.C., provided, that, in each case, Borrower of this Section and Guarantor shall -------- ---- not have any obligation to make any other or further investment or incur any liability in connection with any such acquisition or investment;
(e) stock or obligations issued to Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due Accounts; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral Agent, upon Lender's request, together with such stock power, assignment or endorsement by Borrower or Guarantor as Lender may request;
(f) obligations of account debtors to Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, by Borrower, Guarantor or Subsidiary (as the case may be) and promptly delivered to Collateral Agent as so endorsed;
(g) loans or advances by Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of 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 Borrower, Guarantor or Subsidiary, as the case may be;
(h) any investments of Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, such -------- ---- arrangements are with banks new Subsidiary either becomes a Borrower hereunder or other financial institutions that have combined capital guarantees the Obligations and surplus and undivided profits of not less than $250,000,000 and are not for speculative purposes and are unsecured;
(i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide grants to Lender a report first priority security interest in form and substance satisfactory to Lender all of its property of the outstanding amount of type that would constitute Collateral if such loans as of the last day of the immediately preceding month and indicating any loans made and payments received during the immediately preceding monthSubsidiary were a Borrower hereunder, (B) 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 Lender 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 Lender may require, and (C) as of the date of any such loan and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any such loan by Borrower to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof;
(iii) as to loans by Guarantor to Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, documentation in form and substance satisfactory to Lender, provided that no Event of Default shall have occurred and be continuing after giving effect to such acquisition of or investment in such Subsidiary; (e) any acquisition of assets from a Person engaged in the business of providing for the terms transportation services, or any acquisition of the subordination in right of payment Capital Stock of such Indebtedness Person if such Person becomes a Borrower or Guarantor as provided in clause (d) above, if Borrowers shall have Excess Availability of Borrower not less than $7,500,000 on the date such acquisition or investment is made and after giving effect thereto no Event of Default shall have occurred and be continuing or would occur after giving effect to such acquisition; (f) obligations incurred to fix the interest rate on any variable rate indebtedness permitted hereunder; (g) investments in securities of customers received pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such customers; (h) investments as a result of consideration received in an Asset Sale permitted under Section 9.7; (i) investments in Atlantic North but only to the prior final payment extent necessary under applicable law to permit such entity to provide insurance policies to Parent and satisfaction its Subsidiaries; (j) loans and advances to employees in full of all of the Obligations, duly authorized, executed an aggregate outstanding amount not to exceed $100,000 at any time and delivered by such Guarantor and Borrower, and (C) 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;
(k) investments existing on the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate, provided, that, as to such loans, advances -------- ---- and guarantees, (i) Borrower, Guarantor, 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, 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) Borrower shall furnish to Lender all notices or demands in connection with such loans, advances or guarantees received by any Borrower, Guarantor or Subsidiary or on its behalf, promptly after the receipt thereof or sent by any Borrower, Guarantor or Subsidiary or on its behalf, concurrently with the sending thereofdate hereof.
Appears in 1 contract
Samples: Loan and Security Agreement (Atlantic Express Transportation Corp)
Loans, Investments, Guarantees, Etc. Each of Borrower and Guarantor shall not, ----------------------------------- and shall not permit any Subsidiary to, directly or indirectly, make or permit to exist any loans or advance money or property to any Person, or invest in (by capital contribution, dividend or otherwise) oror 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 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, provided, that, in: (i) no -------- ---- Loans are then outstanding and short-term direct obligations of the United States Government, (ii) negotiable certificates of deposit issued by any bank satisfactory to Lender, payable to the order of Borrower or Guarantor, as the case may be, or to bearer and delivered to Lender, and (iii) commercial paper rated A1 or P1; PROVIDED, THAT, as to any of the foregoing, unless waived in writing by Lender, Borrower and Guarantor shall take such actions as are deemed necessary by Lender to perfect the security interest of Lender in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) the guarantee by Guarantor of the Obligations of Borrower in favor of LenderBurdale Financial Limited of the obligations of Cerplex Ltd. under the Burdale Facility;
(d) the existing equity investments of Borrower and Guarantor in its Subsidiaries as set forth on Schedule 7.1 to the Information Certificate and the existing investment of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C., provided, that, in each case, Borrower and Guarantor shall -------- ---- not have any obligation to make any other or further investment or incur any liability in connection with any such investment;
(e) stock or obligations issued to Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due Accounts; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral Agent, upon Lender's request, together with such stock power, assignment or endorsement by Borrower or Guarantor as Lender may request;
(f) obligations of account debtors to Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, by Borrower, Guarantor or Subsidiary (as the case may be) and promptly delivered to Collateral Agent as so endorsed;
(g) loans or advances by Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of 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 Borrower, Guarantor or Subsidiary, as the case may be;
(h) any investments of Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, 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;
(i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require, and (C) as of the date of any such loan and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any such loan by Borrower to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof;
(iii) as to loans by Guarantor to Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and Borrower, and (C) 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;
(k) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate9.10 hereto, providedPROVIDED, thatTHAT, as to such loans, advances -------- ---- and guarantees, (i) Borrower, Guarantor, or their respective Subsidiaries, as the case may be, each of Borrower and Guarantor 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, 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) Borrower shall furnish to Lender all notices notices, demands or demands other materials in connection with such loans, advances or guarantees either received by any Borrower, Borrower or Guarantor or Subsidiary or on its behalfbehalf of either of them, promptly after the receipt thereof thereof, or sent by any Borrower, Borrower or Guarantor or Subsidiary or on its behalfbehalf of either of them, concurrently with the sending thereof, as the case may be.
Appears in 1 contract
Loans, Investments, Guarantees, Etc. Each Borrower and Guarantor shall not, ----------------------------------- and shall not permit any Subsidiary to, directly or indirectly, make or permit to exist any loans or advance money or property to any Person, or invest in (by capital contribution, dividend or otherwise) oror 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 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) if an Event of Default exists, no -------- ---- Revolving Loans are then outstanding and (ii) as to any of the foregoing, unless waived in writing by Lender, each Borrower and Guarantor shall take such actions as are deemed necessary by Lender to perfect the security interest of Lender in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) the guarantee by each Borrower and Guarantor of the Obligations of any Borrower in favor of Lender;
(d) the existing equity investments of Borrower Borrowers and Guarantor Guarantors as of the date hereof in its Subsidiaries as set forth on Schedule 7.1 to the Information Certificate and the existing investment of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C.their respective Subsidiaries, provided, that, in each case, no Borrower and or Guarantor shall -------- ---- not have any obligation to make any other investment in or further investment loans to, or incur any liability other payments in connection with respect of, any such investmentSubsidiaries;
(e) unsecured loans by any Borrower to any other Borrower, provided, that, as to any such loan, each of the following conditions is satisfied as determined by Lender (i) each month Borrowers shall provide to Lender a report in form and substance satisfactory to Lender of the amount of such loans made in the immediately preceding month, any repayments in connection therewith and the outstanding amount thereof as of the last day of 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 Lender to hold as part of the Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Lender may require, (iii) as of the date of the making of such loan and after giving effect thereto, the Borrower making such loan is and shall be Solvent, (iv) as of the date of the making of such loan and after giving effect thereto, the weekly average Excess Availability of the Borrower making such loan for each of the immediately preceding four weeks shall have been not less than the US Dollar Equivalent of US$1,000,000 as to such loans by any Borrower (other than Galion) or the US Dollar Equivalent of US$250,000 as to such loans by Galion, (v) in the case of any loans to UK Borrower or German Borrower, as of the date of the making of such loan and after giving effect thereto, the aggregate weekly average Excess Availability of all US Borrowers for each of the immediately preceding four weeks shall have been not less than the US Dollar Equivalent of US$3,500,000, (vi) such loans are permitted under the laws and regulations applicable to each such Borrower and (vii) as of the date of the making of such loan and after giving effect thereto, no Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred;
(f) unsecured loans by any Subsidiary of Safety (other than Borrowers) to any Borrower after the date hereof, provided, that, as to any such loan, each of the following conditions is satisfied as determined by Lender: (i) the Indebtedness arising pursuant to such loan is subject to, and subordinate in right of payment to, the right of Lender to receive the prior indefeasible payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (ii) Lender shall have received, in form and substance satisfactory to Lender, 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 Subsidiary and such Borrower, (iii) such Borrower shall not, directly or indirectly make, or be required to make, any payments in respect of such Indebtedness, except as Lender may otherwise specifically agree in writing, (iv) each month Borrowers shall provide to Lender a report in form and substance satisfactory to Lender of the amount of such loans made in the immediately preceding month, any repayments in connection therewith and the outstanding amount thereof as of the last day of the immediately preceding month, and (v) Indebtedness arising pursuant to such loans shall not be evidenced by a promissory note or other instrument, unless the single original of such note or other instrument is delivered to Lender to hold as part of the Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Lender may require;
(g) loans by any Subsidiary of Safety (other than a Borrower or Guarantor) to any other Subsidiary of Safety (other than a Borrower or Guarantor);
(h) stock or obligations issued to any Borrower or Guarantor (or any of their respective Subsidiaries) by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to Borrower such Borrower, Guarantor or Guarantor 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 settlement or compromise of past due AccountsPerson; provided, that, if it is issued to a Borrower or a Guarantor, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral AgentLender, upon Lender's request, together with such stock power, assignment or endorsement by such Borrower or Guarantor as Lender may request;
(fi) obligations of account debtors Account Debtors to any Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by chattel paper or a promissory note made by such account debtor Account Debtor payable to such Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such chattel paper or promissory note by Borrower, such Borrower or Guarantor or Subsidiary (as the case may be) such chattel paper shall be delivered to Lender and such promissory note shall be endorsed to the order of Collateral Agent, Lender by such Borrower, Guarantor or Subsidiary (as the case may be) and promptly delivered to Collateral Agent Lender as so endorsed;
(g) loans or advances by Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of 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 Borrower, Guarantor or Subsidiary, as the case may be;
(hj) any investments of any Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a such Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a such Person against fluctuations in currency exchange rates provided, that, such -------- ---- arrangements are with banks or other financial institutions that have combined capital and surplus and undivided profits of not less than $the US Dollar Equivalent of US$250,000,000 and are not for speculative purposes and are unsecured;
(k) loans or advances by a Borrower or Guarantor to any of its employees, after the date hereof, not to exceed the principal amount of $250,000 in the aggregate at any time outstanding in the ordinary course of such Borrower's or Guarantor'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 or Guarantor; provided, that, (i) the guarantee by Borrower of the Indebtedness of any such employee to such Borrower or Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) the Indebtedness arising pursuant to any such loan is not, and shall not be be, evidenced by a any promissory note or other instrument, unless the single original of such note or other instrument is promptly delivered to Lender Lender, upon its request the issuance thereof, duly indorsed and assigned by such Borrower or Guarantor to hold as part of the Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Lender may requireLender, and (Cii) as of the date of any such loan and after giving effect thereto, no Event of Default, Default or act, event or condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any such loan by Borrower to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereofoccurred;
(iii) as to loans by Guarantor to Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and Borrower, and (C) 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;
(kl) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate9.10 hereto, provided, that, as to such loans, advances -------- ---- and guarantees, (i) BorrowerBorrowers, GuarantorGuarantors, 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, 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 in respect of regularly scheduled payments permitted herein) and (ii) Borrower Borrowers shall furnish to Lender all notices or demands in connection with such loans, advances or guarantees received by any a Borrower, Guarantor or Subsidiary or on its behalf, promptly after the receipt thereof;
(m) unsecured loans by any Borrower to Automotive Safety Czech and Automotive Safety Mexico, provided, that, as to any such loan, each of the following conditions is satisfied as determined by Lender in good faith: (i) each month Borrowers shall provide to Lender a report in form and substance satisfactory to Lender of the amount of such loans made in the immediately preceding month, any repayments in connection therewith and the outstanding amount thereof as of the last day of the immediately preceding month, (ii) the Indebtedness arising pursuant to any such loan shall not be evidenced by a promissory note or sent other instrument, unless, the single original of such note or other instrument is delivered to Lender to hold as part of the Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Lender may require, (iii) as of the date of the making of such loan and after giving effect thereto, the Borrower making such loan is and shall be Solvent, (iv) as of the date of the making of such loan and after giving effect thereto, the weekly average Excess Availability of the Borrower making such loan for each of the immediately preceding four weeks shall have been not less than the US Dollar Equivalent of US$1,000,000, (v) such loans are permitted under the laws and regulations applicable to each such Borrower, (vi) as of the date of the making of such loan and after giving effect thereto, no Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred, (vii) as of the date of the making of such loan and after giving effect thereto, the aggregate weekly average Excess Availability of all US Borrowers for each of the immediately preceding four weeks shall have been not less than the US Dollar Equivalent of US$5,000,000, (viii) the amount of all such loans to Automotive Safety Czech and Automotive Safety Mexico shall not exceed $10,000,000 in the aggregate and (ix) as of the date of the making of such loan, Adjusted Pre-Tax Income of the Borrower making such loan for each of the two most recently ended fiscal quarters shall have been greater than zero;
(n) other unsecured guaranties in the aggregate amount not to exceed $500,000, provided, that, as to any such guarantee, each of the following conditions is satisfied as determined by Lender in good faith: as of the date of the making of such guarantee and after giving effect thereto, (i) no Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and (ii) in the case of a guarantee made by any Borrower, the weekly average Excess Availability of such Borrower for each of the immediately preceding four weeks shall have been not less than the US Dollar Equivalent of US$1,000,000;
(o) the guarantee by each Borrower and Guarantor or Subsidiary or on its behalfof the Indebtedness permitted under Section 9.9(g); and
(p) following prior written notice to Lender, concurrently with all outstanding indebtedness owing under the sending thereof12% Revolving Demand Note dated August 1, 1996 made by Automotive Safety Czech in favor of ASCI Czech may be converted to an equity investment by ASCI Czech in Automotive Safety Czech; provided, that, ASCI Czech shall not make any cash payments in connection therewith.
Appears in 1 contract
Samples: Loan and Security Agreement (Safety Components International Inc)
Loans, Investments, Guarantees, Etc. Borrower and Guarantor shall not, ----------------------------------- and shall not permit any Subsidiary to, directly or indirectly, make or permit to exist any loans or advance money or property to any Personperson, or invest in (by capital contribution, dividend or otherwise) oror 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 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 -------- ---- Loans are then outstanding and (ii) as to any of the foregoing, unless waived in writing by LenderAgent, Borrower and Guarantor shall take such actions as are deemed necessary by Lender Agent to perfect the security interest of Lender Agent in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) the guarantee by Guarantor of the Obligations of Borrower in favor of Lender;
(d) the existing equity investments of Borrower and Guarantor as of the date hereof in its Subsidiaries as set forth on Schedule 7.1 to the Information Certificate and the existing investment of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C.Subsidiaries, provided, that, in each case, Borrower and Guarantor shall -------- ---- not have any no obligation to make any other investment in, or further investment loans to, or incur any liability other payments in connection with respect of, any such investmentSubsidiaries;
(i) guarantees by any Subsidiaries of Borrower of the Obligations in favor of Agent, (ii) guarantees by Borrower and SAIM of the Obligations (as defined in the Subsidiary Loan Agreement) in favor of Subsidiary Agent and (iii) Borrower's guaranty in favor of Sellers with respect to the Seller Note, Additional Consideration and Buyers' Closing Certificate (as defined in the Stock Purchase Agreement);
(e) stock or obligations issued to Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due AccountsPerson; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral Agent, upon LenderAgent's request, together with such stock power, assignment or endorsement by Borrower or Guarantor as Lender Agent may request;
(f) obligations of account debtors to Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, Agent by Borrower, Guarantor or Subsidiary (as the case may be) Borrower and promptly delivered to Collateral Agent as so endorsed;
(g) loans the loans, advances and guarantees set forth on Schedule 9.10 hereto; provided, that, (i) Borrower may only make regularly scheduled payments of principal and interest in respect of such Indebtedness in accordance with the terms of the agreement or advances by Borrower, Guarantor instrument evidencing or any of their respective Subsidiaries giving rise to any of its employees, after such Indebtedness as in effect on the date hereof, not (ii) Borrower shall not, directly or indirectly, (A) amend, modify, alter or change the terms of such Indebtedness or any agreement, document or instrument related thereto as in effect on the date hereof except, that, Borrower may, after prior written notice to exceed Agent, amend, modify, alter or change the principal amount terms thereof so as to extend the maturity thereof, or defer the timing of $300,000 any payments in respect thereof, or to forgive or cancel any portion of such Indebtedness (other than pursuant to payments thereof), or to reduce the aggregate at interest rate or any time outstanding fees in the ordinary course of Borrower'sconnection therewith, Guarantor's or Subsidiary's business (B) redeem, retire, defease, purchase or otherwise acquire such Indebtedness, or set aside or otherwise deposit or invest any sums for reasonable such purpose, and necessary work-related travel and other ordinary business expenses (iii) Borrower shall furnish to be incurred by such employees Agent all notices or demands in connection with their employment such Indebtedness either received by Borrower or on its behalf, promptly after the receipt thereof, or sent by Borrower or on its behalf, concurrently with Borrower, Guarantor or Subsidiarythe sending thereof, as the case may be;
(h) any investments of Borrowerloans by Borrower to a Guarantor after the date hereof, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, 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;
(i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender Agent a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender Agent may require, and (C) as of the date of any such loan and after giving effect thereto, Borrower shall be Solvent, (D) as of the date of any such loan and after giving effect thereto, (1) no Event of Default, Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any such loan by Borrower to Guarantor, and after giving effect thereto, the (2) Borrower shall have Excess Availability shall be of not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof;
5,000,000; (iii) as to loans by Guarantor to Borrower, (AE) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender Lenders to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to LenderAgent, (BF) promptly upon LenderAgent's request, Lender Agent shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such any Guarantor and Borrower, and (CG) 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; and (H) as of the date of any such loan and after giving effect thereto, the aggregate amount of all such loans shall not exceed $5,000,000 in the aggregate with respect to all intercompany loans among Borrower and its Affiliates;
(ki) the existing loans, advances formation by Borrower of MJS and guarantees set forth on Schedule 8.10 the capital contribution by Borrower to MJS in an amount up to $21,000,000 to be used by MJS to consummate the Information Certificate, provided, that, as to such loans, advances -------- ---- transactions under the Purchase Documents; and
(j) the purchase by MJS of Soffe and guarantees, (i) Borrower, Guarantor, or their respective Subsidiaries, as the case may be, shall not, directly or indirectly, (A) amend, modify, alter or change its Subsidiaries in any material respect the terms of such 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 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) Borrower shall furnish to Lender all notices or demands in connection with such loans, advances or guarantees received by any Borrower, Guarantor or Subsidiary or on its behalf, promptly after the receipt thereof or sent by any Borrower, Guarantor or Subsidiary or on its behalf, concurrently accordance with the sending thereofPurchase Documents.
Appears in 1 contract
Loans, Investments, Guarantees, Etc. Borrower and Guarantor shall not, ----------------------------------- and shall not permit any Subsidiary to, directly or indirectly, make or permit to exist any loans or advance money or property to any Personperson, or invest in (by capital contribution, dividend or otherwise) oror 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 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, provided, that, (i) no -------- ---- Loans are then outstanding and (ii) as to any of the foregoing, unless waived in writing by Lender, Borrower and Guarantor shall take such actions as are deemed necessary by Lender to perfect the security interest of Lender in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) the guarantee by Guarantor contingent obligation of Borrower to purchase accounts owing to Mannesmann in the event that the account debtor fails to pay such account within ninety (90) days of the Obligations invoice date as set forth in Section 5.4 of Borrower in favor of Lenderthe Mannesmann Agreement;
(d) the existing equity investments contingent reimbursement obligation of Borrower and Guarantor to Citibank N.A. as issuer of the Existing Letters of Credit in its Subsidiaries as set forth on Schedule 7.1 to the Information Certificate and the existing investment event of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C.a draw thereunder, provided, that, in each caseBorrower shall not amend, Borrower and Guarantor shall -------- ---- not have modify or extend any obligation to make of the Existing Letters of Credit or any other or further investment or incur any liability in connection with any such investmentagreement related thereto;
(e) stock or obligations issued to Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due AccountsPerson; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral AgentLender, upon Lender's request, together with such stock power, assignment or endorsement by Borrower or Guarantor as Lender may request;
(f) obligations of account debtors to Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, by Borrower, Guarantor or Subsidiary (as the case may be) and promptly delivered to Collateral Agent as so endorsed;
(g) loans or advances by Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of 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 Borrower, Guarantor or Subsidiary, as the case may be;
(h) any investments of Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, 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;
(i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require, and (C) as of the date of any such loan and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any such loan by Borrower to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof;
(iii) as to loans by Guarantor to Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and Borrower, and (C) 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;
(k) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate, provided, that, as to such loans, advances -------- ---- and guarantees, (i) Borrower, Guarantor, 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, 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) Borrower shall furnish to Lender all notices or demands in connection with such loans, advances or guarantees received by any Borrower, Guarantor or Subsidiary or on its behalf, promptly after the receipt thereof or sent by any Borrower, Guarantor or Subsidiary or on its behalf, concurrently with the sending thereof.
Appears in 1 contract
Loans, Investments, Guarantees, Etc. Borrower and Guarantor shall not, ----------------------------------- and shall not ------------------------------------ permit any Subsidiary to, directly or indirectly, make or permit to exist any loans or advance money or property to any Personperson, or invest in (by capital contribution, dividend or otherwise) oror 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 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) as to any of the foregoing, unless waived in writing by Lender, Borrower and Guarantor shall take such actions as are deemed necessary by Lender to perfect the security interest of Lender in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) the guarantee by Guarantor of the Obligations of Borrower in favor of Lender;
(d) the existing equity investments of Borrower and Guarantor as of the date hereof in its Subsidiaries as set forth on Schedule 7.1 to the Information Certificate and the existing investment of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C.Subsidiaries, provided, that, in each case, Borrower and Guarantor shall -------- ---- not have any no obligation to make any other investment in, or further investment loans to, or incur any liability other payments in connection with respect of, any such investmentSubsidiaries;
(d) guarantees by any Subsidiaries of Borrower of the Obligations in favor of Lender; (e) stock or obligations issued to equity investment of Borrower or Guarantor by any Person in a wholly-owned Subsidiary organized under the laws of Mexico (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to Borrower or Guarantor in connection with the insolvency"Mexican Subsidiary"), bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person or settlement or compromise of past due Accounts; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral Agent, upon Lender's request, together with such stock power, assignment or endorsement by Borrower or Guarantor as Lender may request;
(f) obligations of account debtors to Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt each of the original of any such promissory note by Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, by Borrower, Guarantor or Subsidiary (as the case may be) and promptly delivered to Collateral Agent as so endorsed;
(g) loans or advances by Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of 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 Borrower, Guarantor or Subsidiary, as the case may be;
(h) any investments of Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, 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;
following conditions is satisfied (i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide execute and deliver to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require, and (C) as of the date of any such loan and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any such loan by Borrower to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof;
(iii) as to loans by Guarantor to Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms a pledge and security agreement granting to Lender a first pledge of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full lien on at least sixty-five (65%) of all of the Obligations, duly authorized, executed issued and delivered by such Guarantor and Borrower, and (C) Borrower shall not, directly or indirectly make, or be required to make, any payments in respect outstanding shares of Capital Stock of such Indebtedness prior to the end of the then current term of this Agreement;
(k) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate, provided, that, as to such loans, advances -------- ---- and guarantees, (i) Borrower, Guarantor, 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, 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) Borrower shall furnish to Lender all notices or demands in connection with such loans, advances or guarantees received by any Borrower, Guarantor or Subsidiary or on its behalf, promptly after the receipt thereof or sent by any Borrower, Guarantor or Subsidiary or on its behalf, concurrently with the sending thereof.Subsidiary,
Appears in 1 contract
Loans, Investments, Guarantees, Etc. Borrower and Guarantor shall not, ----------------------------------- and shall not permit any Subsidiary to, directly or ------------------------------------ indirectly, make or permit to exist any loans or advance money or property to any Personperson, or invest in (by capital contribution, dividend or otherwise) or,
(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 -------- ---- Loans are then outstanding and (ii) as to any of the -------- ---- foregoing, unless waived in writing by LenderAgent, Borrower and Guarantor shall take such actions as are deemed necessary by Lender Agent to perfect the security interest of Lender Agent, for the ratable benefit of Lender, in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) the guarantee by Guarantor of the Obligations existing investment of Borrower in favor the Capital Stock of LenderChildren's Product Inc., Children's Development Inc., ZBH, Children's Distribution LLC and Children's Equity LLC;
(d) capital contributions, loans or other payments by Borrower to or for the existing equity investments acquisition of or otherwise in connection with any wholly-owned Subsidiary of Borrower and Guarantor formed or acquired after the date hereof in its Subsidiaries as set forth on Schedule 7.1 accordance with Section 9.7 or loans by Borrower to the Information Certificate and the existing investment employees of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C.after the date hereof, provided, that, in as to each casesuch capital contribution, Borrower and Guarantor shall loan or other -------- ---- not have any obligation payment, each of the following conditions is satisfied as determined by Agent: (i) in no event shall the total amount of capital contributions, loans or other amounts paid by Borrower to, for or in connection with the formation or acquisition of all such Subsidiaries, together with all loans by Borrower to make any other or further investment or incur any liability employees of Borrower, and amounts paid in connection with any merger or consolidation permitted under Section 9.7 hereof, exceed $1,500,000, (ii) at the time of any such investment;
capital contribution, loan or other payment and after giving effect thereto, no Event of Default or act, condition or event which with notice and passage of time or both would constitute an Event of Default, shall exist or have occurred, (e) stock or obligations issued to Borrower or Guarantor by any Person (or the representative of such Personiii) in respect the case of Indebtedness any loans by Borrower to, for or other obligations of such Person owing to Borrower or Guarantor in connection with a Subsidiary or employee, the insolvencyIndebtedness arising from such loans shall not be evidenced by any promissory note or other instrument, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person or settlement or compromise of past due Accounts; provided, that, unless the original of such note or other instrument is delivered to Agent, duly endorsed and assigned by the payee to Agent in a form and manner acceptable to Agent, (iv) in the case of any loan by Borrower to employees of Borrower, such stock -------- ---- or instrument evidencing such obligations loans shall be promptly delivered to Collateral Agent, upon Lender's request, together with such stock power, assignment or endorsement by Borrower or Guarantor as Lender may request;
(f) obligations of account debtors to Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, by Borrower, Guarantor or Subsidiary (as the case may be) and promptly delivered to Collateral Agent as so endorsed;
(g) loans or advances by Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of Borrower's, Guarantor's or Subsidiary's business for reasonable and necessary work-related travel and or other ordinary business expenses to be incurred by such employees in connection with their employment work for Borrower or for the relocation of such employees in connection with their work for Borrower, Guarantor or Subsidiary, as the case may be;
(h) for any investments of other purpose related in any manner to their employment by Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, 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;
(i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require, and (Cv) as of the date of any such capital contribution, loan or other payment, the daily average of the Excess Availability for the immediately preceding thirty (30) consecutive day period shall be not less than $7,500,000, and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any such capital contribution, loan by Borrower to Guarantor, or other payment and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, 5,000,000,
(e) capital contributions or loans by Borrower to or for the proceeds benefit of which are used by Guarantor only to make a regularly scheduled the existing wholly-owned Subsidiaries of Borrower after the date hereof (but not including for this purpose the payment of interest in cash royalties or other immediately available funds due substantially contemporaneously with the making of such loan fees or amounts in respect of Intellectual Property licensed by Borrower), provided, that, the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, -------- ---- aggregate amount of all such capital contributions and loans shall be subject to Excess Availability being not exceed $50,000 in the amounts required for such payments by Guarantor under Section 8.9(c) hereofany fiscal year;
(iiif) capital contributions or loans by Borrower to ZBH after the date hereof, provided, that, as to each such capital contribution or loan, each of -------- ---- the following conditions is satisfied as determined by Agent: (i) in no event shall the amount of all such capital contributions or loans by Guarantor to Borrowerexceed $5,000,000 in the aggregate, (Aii) the Indebtedness arising pursuant to in no event shall Borrower make any such loan shall be subject to, capital contributions or loans unless and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender until Agent shall have received a subordination agreementreceived, in form and substance satisfactory to LenderAgent, providing for evidence that Borrower has obtained all requisite consents to the terms pledge of its membership interests in ZBH to Agent, (iii) at the subordination time of any such capital contribution or loan and after giving effect thereto, no Event of Default or act, condition or event which with notice and passage of time or both would constitute an Event of Default, shall exist or have occurred, (iv) in right the case of payment any loans by Borrower to ZBH, the Indebtedness arising from such loans shall not be evidenced by any promissory note or other instrument, unless the original of such Indebtedness of Borrower note or other instrument is delivered to the prior final payment and satisfaction in full of all of the ObligationsAgent, duly authorized, executed endorsed and delivered assigned by such Guarantor the payee to Agent in a form and Borrowermanner acceptable to Agent, and (Cv) Borrower shall not, directly or indirectly make, or be required to make, any payments in respect of such Indebtedness prior to the end as of the then current term date of this Agreement;any such capital contribution, loan or other payment, the daily average of the Excess Availability for the immediately preceding thirty (30) consecutive day period shall be not less than $7,500,000, and as of the date of any such capital contribution, loan or other payment and after giving effect thereto, the Excess Availability shall be not less than $5,000,000, and
(kg) the existing loans, advances and guarantees by Borrower outstanding as of the date hereof as set forth on Schedule 8.10 to the Information Certificate, 9.10 hereto; provided, that, as to such loans, advances -------- ---- and guarantees, (i) Borrower, Guarantor, or their respective Subsidiaries, as the case may be, Borrower 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, 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) Borrower shall furnish to Lender Agent all notices notices, demands or demands other materials in connection with such loans, advances or guarantees either received by any Borrower, Guarantor or Subsidiary Borrower or on its behalf, promptly after the receipt thereof thereof, or sent by any Borrower, Guarantor or Subsidiary Borrower or on its behalf, concurrently with the sending thereof, as the case may be.
Appears in 1 contract
Loans, Investments, Guarantees, Etc. Each Borrower and Guarantor shall not, ----------------------------------- and --------------------------------------- shall not permit any Subsidiary to, directly or indirectly, make or permit to exist any loans or advance money or property to any Personperson, or invest in (by capital contribution, dividend or otherwise) oror 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 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) as to any of the foregoing, unless waived in writing by Lender, each Borrower and Guarantor shall take such actions as are deemed necessary by Lender to perfect the security interest of Lender in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) the guarantee by Guarantor of the Obligations of Borrower in favor of Lender;
(d) the existing equity investments of each Borrower and Guarantor as of the date hereof in its Subsidiaries as set forth on Schedule 7.1 to the Information Certificate and the existing investment of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C.Subsidiaries, provided, that, in each case, Borrower and Guarantor shall -------- ---- not have any obligation to make any other investment in, or further investment loans to, or incur any liability other payments in connection with respect of, any such investmentSubsidiaries;
(d) guarantees by any Subsidiaries of any Borrower of the Obligations in favor of Lender;
(e) stock or obligations issued to a Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due AccountsPerson; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral AgentLender, upon Lender's request, together with such stock power, assignment or endorsement by such Borrower or Guarantor as Lender may request;
(f) obligations of or account debtors to a Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to such Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by any Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, Lender by Borrower, Guarantor or Subsidiary (as the case may be) such Borrower and promptly delivered to Collateral Agent Lender as so endorsed;
(g) loans or advances by Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of 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 Borrower, Guarantor or Subsidiary, as the case may be;
(h) any investments of Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, 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;
(i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require, and (C) as of the date of any such loan and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any such loan by Borrower to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof;
(iii) as to loans by Guarantor to Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and Borrower, and (C) 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;
(k) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate, 9.10 hereto; provided, that, as to such loans, advances -------- ---- and guarantees, (i) Borrower, Guarantor, or their respective Subsidiaries, as the case may be, each Borrower 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, or (B) as to such guarantees, redeem, retire, defease, purchase or otherwise acquire the obligations arising pursuant to such guarantee guarantees, 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) purpose, and (ii) each Borrower shall furnish to Lender all notices or demands in connection with such loans, advances or guarantees or other Indebtedness subject to such guarantees either received by any Borrower, Guarantor or Subsidiary such Borrower or on its behalf, promptly after the receipt thereof thereof, or sent by any Borrower, Guarantor or Subsidiary such Borrower or on its behalf, concurrently with the sending thereof, as the case may be; and
(h) unsecured loans by any Borrower to any other Borrower to the extent permitted under Section 9.12 hereof; provided, that, as to any such loan, (i) each month Borrowers shall provide to Lender a report in form and substance reasonably satisfactory to Lender of the amount of such loans made in the immediately preceding month and any repayments in connection therewith, and (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 Lender to hold as part of the Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Lender may reasonably require.
Appears in 1 contract
Loans, Investments, Guarantees, Etc. No Borrower and Guarantor shall notshall, ----------------------------------- and shall not ------------------------------------ permit any Subsidiary of its Subsidiaries to, directly or indirectly, make make, or suffer or permit to exist exist, any loans or advance money or property to any Personperson, or invest any investment in (by capital contribution, dividend or otherwise) oror 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) Accommodation Payments;
(b) the endorsement of instruments for collection or deposit in the ordinary course of business;
(bc) investments in cash or Cash Equivalents, provided, that, (i) no -------- ---- Revolving Loans are then outstanding and (ii) as to any of the foregoing, unless waived in writing by Lender, such Borrower and Guarantor shall take such actions as are deemed necessary by Lender to perfect the security interest of Lender in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) the guarantee by Guarantor of the Obligations of Borrower in favor of Lender;
(d) the existing equity investments of such Borrower and Guarantor as of the date hereof in its Subsidiaries as set forth on Schedule 7.1 to the Information Certificate and the existing investment of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C.Subsidiaries, provided, that, in each case, such Borrower and Guarantor shall have no -------- ---- not have any obligation to make any other investment in, or further investment loans to, or incur any liability other payments in connection with respect of, any such investmentSubsidiaries;
(e) equity investments of such Borrower 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, such 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 any and all present and future Obligations of such Borrower to Lender, (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, (C) related UCC Financing Statements, and (D) such other agreements, documents and instruments as Lender may require, including 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) such 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) 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) 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 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 or other amounts paid by such Borrower to any Subsidiary formed or acquired after the date hereof or for the acquisition thereof exceed $5,000,000, (v) as of the date of any such payment and after giving effect thereto, Excess Availability for each of the immediately preceding thirty (30) consecutive days shall have been not less than $16,000,000, and (vi) as of the date of any such payment and after giving effect thereto, the Excess Availability shall be not less than $16,000,000;
(f) stock or obligations issued to such Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due AccountsPerson; provided, that, the original of any such stock or instrument -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral AgentLender, upon Lender's request, together with such stock power, assignment or endorsement by such Borrower or Guarantor as Lender may request;
(fg) obligations of or account debtors to such Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to such Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the receipt of -------- ---- receipt of the original of any such promissory note by such Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, Lender by Borrower, Guarantor or Subsidiary (as the case may be) such Borrower and promptly delivered to Collateral Agent Lender as so endorsed;
(gh) the loans or and advances by Borrowerset forth on Schedule 9.10 hereto; provided, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of 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 Borrower, Guarantor or Subsidiary-------- that, as the case may be;
(h) any investments of Borrowerto such loans and advances, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, 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;
(i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require, and (C) as of the date of any such loan and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any such loan by Borrower to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof;
(iii) as to loans by Guarantor to Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and Borrower, and (C) 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;
(k) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate, provided, that, as to such loans, advances -------- ---- and guarantees, (i) Borrower, Guarantor, 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, loans and advances or guarantees or any agreement, document or instrument related thereto, 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) thereto and (ii) such Borrower shall furnish to Lender all notices or demands in connection with such loans, loans and advances or guarantees either received by any Borrower, Guarantor or Subsidiary such Borrower or on its behalf, promptly after the receipt thereof thereof, or sent by any Borrower, Guarantor or Subsidiary such Borrower or on its behalf, concurrently with the sending thereof, as the case may be.
Appears in 1 contract
Loans, Investments, Guarantees, Etc. Each Borrower and Guarantor shall not, ----------------------------------- and shall not permit any Subsidiary to, directly or indirectly, make or permit to exist any loans or advance money or property to any Person, or invest in (by capital contribution, dividend or otherwise) oror 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 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 -------- ---- Loans are then outstanding and (ii) as to any of the foregoing, unless waived in writing by LenderAgent, such Borrower and Guarantor shall take such actions as are deemed necessary by Lender Agent to perfect the security interest of Lender Agent in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) the guarantee by Guarantor existing equity investments of such Borrower as of the Obligations of 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 favor of Lenderrespect of, any such Subsidiaries;
(d) guarantees by any Subsidiaries of any Borrower of the existing equity investments Obligations in favor of Borrower Agent and Guarantor in its Subsidiaries as set forth on Schedule 7.1 to the Information Certificate and the existing investment of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C., provided, that, in each case, Borrower and Guarantor shall -------- ---- not have any obligation to make any other or further investment or incur any liability in connection with any such investmentLenders;
(e) stock or obligations issued to such Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due AccountsPerson; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral Agent, upon Lender's Agent’s request, together with such stock power, assignment or endorsement by such Borrower or Guarantor as Lender Agent may request;
(f) obligations of account debtors to such Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to such Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by such Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, Agent by Borrower, Guarantor or Subsidiary (as the case may be) such Borrower and promptly delivered to Collateral Agent as so endorsed;
(g) loans or advances by Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of 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 Borrower, Guarantor or Subsidiary, as the case may be;
(h) any investments of Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, 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;
(i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require, and (C) as of the date of any such loan and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any such loan by Borrower to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof;
(iii) as to loans by Guarantor to Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and Borrower, and (C) 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;
(k) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate, 9.10 hereto; provided, that, as to such loans, advances -------- ---- and guarantees, (i) Borrowersuch Borrower may only make regularly scheduled payments of principal and interest in respect of such Indebtedness in accordance with the terms of the agreement or instrument evidencing or giving rise to such Indebtedness as in effect on the date hereof, Guarantor, or their respective Subsidiaries, as the case may be, (ii) such Borrower shall not, directly or indirectly, (A) amend, modify, alter or change in any material respect the terms of such loans, advances or guarantees Indebtedness or any agreement, document or instrument related theretothereto as in effect on the date hereof except, that, such Borrower may, 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 any portion of such Indebtedness (other than pursuant to payments thereof), or to reduce the interest rate or any fees in connection therewith, or (B) as to such guarantees, redeem, retire, defease, purchase or otherwise acquire such guarantee Indebtedness, 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) purpose, and (iiiii) such Borrower shall furnish to Lender Agent all notices or demands in connection with such loans, advances or guarantees Indebtedness either received by any Borrower, Guarantor or Subsidiary such Borrower or on its behalf, promptly after the receipt thereof thereof, or sent by any Borrower, Guarantor or Subsidiary such Borrower or on its behalf, concurrently with the sending thereof, as the case may be;
(h) loans by such Borrower to any other Borrower after the date hereof;
(i) Permitted Acquisitions and form Acquisition Subsidiaries in connection therewith;
(j) upfront advances by such Borrower for anticipated royalties under License Agreements entered into by such Borrower in the ordinary course of business of such Borrower consistent with the current practices of such Borrower as of the date hereof; and
(k) investments in the Honduras JV not to exceed an aggregate amount outstanding at any time of $6,000,000 during the term of this Agreement.
Appears in 1 contract
Loans, Investments, Guarantees, Etc. Borrower and Guarantor each Obligor shall not, ----------------------------------- and shall not permit any Subsidiary to, directly or indirectly, make or permit to exist any loans or advance money or property to any Personperson, or invest in (by capital contribution, dividend or otherwise) oror purchase or repurchase the shares 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 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 in: (i) short-term direct obligations of the Canadian Government or Cash Equivalentsthe United States Government, (ii) negotiable certificates of deposit issued by any bank satisfactory to Lender, payable to the order of Borrower or such Obligor or to bearer and delivered to Lender, and (iii) commercial paper rated Al or P1; provided, that, (i) no -------- ---- Loans are then outstanding and (ii) as to any of the foregoing, unless waived in writing by Lender, Borrower and Guarantor each Obligor shall take such actions as are deemed necessary by Lender and Agents to perfect the security interest Lien of Agents and/or Lender in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) the guarantee by Guarantor of the Obligations of Borrower in favor of LenderAcquisitions;
(d) travel advances, employee relocation loans and other employee loans and advances in the existing equity investments ordinary course of Borrower and Guarantor in its Subsidiaries as set forth on Schedule 7.1 to the Information Certificate and the existing investment business of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C., provided, that, in each case, Borrower and Guarantor shall -------- ---- not have any obligation to make any other or further investment or incur any liability in connection with any such investmentBorrower;
(e) stock or obligations issued to Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or loans, advances and other obligations of such Person owing to 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 or settlement or compromise of past due Accounts; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral Agent, upon Lender's request, together with such stock power, assignment or endorsement by Borrower or Guarantor as Lender may requestguarantees set forth on Schedule 8.10 hereto;
(f) obligations of account debtors to Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, by Borrower, Guarantor or Subsidiary (as the case may be) and promptly delivered to Collateral Agent as so endorsed;
(g) loans or advances by Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding unsecured guarantees issued in the ordinary course of Borrower'sbusiness by Borrower or Obligors to their suppliers, Guarantor's vendors and lessors with respect to the obligations of Borrower 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 Borrower, Guarantor or SubsidiaryObligors, as the case may be;, to such suppliers, vendors and lessors; and
(hg) any investments of Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, such -------- ---- arrangements are with banks or other financial institutions loans 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;
(i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require, and (C) as of the date of any such loan and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any such loan by Borrower to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof;
(iii) as to loans by Guarantor to Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and Borrower, and (C) 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;
(k) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate, Permitted Inter-Company Debt; provided, that, as to such loans, advances -------- ---- and guarantees, (i) Borrower, Guarantor, or their respective Subsidiaries, as the case may be, Borrower and each Obligor 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, or (B) as to such guarantees, redeem, retire, defease, purchase or otherwise acquire the obligations arising pursuant to such guarantee guarantees, 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) purpose, and (ii) Borrower and each Obligor shall furnish to Lender all notices or demands in connection with such loans, advances or guarantees or other indebtedness subject to such guarantees either received by any Borrower, Guarantor or Subsidiary each Obligor or on its behalf, promptly after the receipt thereof thereof, or sent by any Borrower, Guarantor or Subsidiary each Obligor or on its behalf, concurrently with the sending thereof, as the case may be.
Appears in 1 contract
Loans, Investments, Guarantees, Etc. Borrower and Guarantor shall not, ----------------------------------- and shall not permit any Subsidiary to, directly or indirectly, make make, or suffer or permit to exist exist, any loans or advance money or property to any Personperson, or invest any investment in (by capital contribution, dividend or otherwise) oror 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 other than bankruptcy remote Subsidiaries formed in connection with a Securitization, 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 -------- ---- Loans are then outstanding and (ii) as to any of the foregoing, unless waived in writing by Lender, Borrower and Guarantor shall take such actions as are deemed necessary by Lender to perfect the security interest of Lender in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) the guarantee by Guarantor of the Obligations of Borrower in favor of Lender;
(d) the existing equity investments of Borrower and Guarantor as of the date hereof in its Subsidiaries as set forth on Schedule 7.1 to the Information Certificate and the existing investment of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C.Subsidiaries, provided, that, in each case, Borrower and Guarantor shall -------- ---- not have any no obligation to make any other investment in, or further investment loans to, or incur any liability other payments in connection with respect of, any such investmentSubsidiaries;
(ed) stock or obligations issued to Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due AccountsPerson; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral AgentLender, upon Lender's request, together with such stock power, assignment or endorsement by Borrower or Guarantor as Lender may request;
(fe) obligations of or account debtors to Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, Lender by Borrower, Guarantor or Subsidiary (as the case may be) Borrower and promptly delivered to Collateral Agent Lender as so endorsed;; and
(gf) the loans or and advances by Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of 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 Borrower, Guarantor or Subsidiary, as the case may be;
(hset forth on Schedule 9.10(f) any investments of Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates hereto; provided, that, as to such -------- ---- arrangements are with banks or other financial institutions that have combined capital loans and surplus and undivided profits of not less than $250,000,000 and are not for speculative purposes and are unsecured;
advances, (i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require, and (C) as of the date of any such loan and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any such loan by Borrower to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof;
(iii) as to loans by Guarantor to Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and Borrower, and (C) 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;
(k) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate, provided, that, as to such loans, advances -------- ---- and guarantees, (i) Borrower, Guarantor, 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, loans and advances or guarantees or any agreement, document or instrument related thereto, 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) thereto and (ii) Borrower shall furnish to Lender all notices or demands in connection with such loans, loans and advances or guarantees either received by any Borrower, Guarantor or Subsidiary Borrower or on its behalf, promptly after the receipt thereof thereof, or sent by any Borrower, Guarantor or Subsidiary Borrower or on its behalf, concurrently with the sending thereof, as the case may be.
Appears in 1 contract
Loans, Investments, Guarantees, Etc. Each Borrower and Guarantor shall not, ----------------------------------- and shall not permit any Subsidiary to, directly or indirectly, make or permit to exist any loans or advance money or property to any Personperson, or invest in (by capital contribution, dividend or otherwise) oror 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 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 -------- ---- Loans are then outstanding and (ii) as to any of the foregoing, unless waived in writing by LenderAgent, Borrower and Guarantor shall take such actions as are deemed necessary by Lender Agent to perfect the security interest of Lender Agent in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) the guarantee by Guarantor existing equity investments of such Borrower as of the Obligations of 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 favor of Lenderrespect of, any such Subsidiaries;
(d) guarantees by any Subsidiaries of any Borrower of the existing equity investments Obligations in favor of Borrower Agent and Guarantor in its Subsidiaries as set forth on Schedule 7.1 to the Information Certificate and the existing investment of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C., provided, that, in each case, Borrower and Guarantor shall -------- ---- not have any obligation to make any other or further investment or incur any liability in connection with any such investmentLenders;
(e) stock or obligations issued to such Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due AccountsPerson; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral Agent, upon LenderAgent's request, together with such stock power, assignment or endorsement by such Borrower or Guarantor as Lender Agent may request;
(f) obligations of account debtors to such Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to such Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by such Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, Agent by Borrower, Guarantor or Subsidiary (as the case may be) such Borrower and promptly delivered to Collateral Agent as so endorsed;
(g) loans or advances by Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of 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 Borrower, Guarantor or Subsidiary, as the case may be;
(h) any investments of Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, 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;
(i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require, and (C) as of the date of any such loan and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any such loan by Borrower to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof;
(iii) as to loans by Guarantor to Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and Borrower, and (C) 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;
(k) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate, 9.10 hereto; provided, that, as to such loans, advances -------- ---- and guarantees, (i) Borrowersuch Borrower may only make regularly scheduled payments of principal and interest in respect of such Indebtedness in accordance with the terms of the agreement or instrument evidencing or giving rise to such Indebtedness as in effect on the date hereof, Guarantor, or their respective Subsidiaries, as the case may be, (ii) such Borrower shall not, directly or indirectly, (A) amend, modify, alter or change in any material respect the terms of such loans, advances or guarantees Indebtedness or any agreement, document or instrument related theretothereto as in effect on the date hereof except, that, such Borrower may, 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 any portion of such Indebtedness (other than pursuant to payments thereof), or to reduce the interest rate or any fees in connection therewith, or (B) as to such guarantees, redeem, retire, defease, purchase or otherwise acquire such guarantee Indebtedness, 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) purpose, and (iiiii) such Borrower shall furnish to Lender Agent all notices or demands in connection with such loans, advances or guarantees Indebtedness either received by any Borrower, Guarantor or Subsidiary such Borrower or on its behalf, promptly after the receipt thereof thereof, or sent by any Borrower, Guarantor or Subsidiary such Borrower or on its behalf, concurrently with the sending thereof, as the case may be;
(h) loans by such Borrower to any other Borrower after the date hereof;
(i) the transactions relating to the Soffe Purchase Documents and the transactions contemplated by the Junkfood Purchase Documents;
(j) Permitted Acquisitions; and
(k) investments in the Honduras JV not to exceed an aggregate amount of $3,000,000 during the term of this Agreement.
Appears in 1 contract
Loans, Investments, Guarantees, Etc. Borrower and Guarantor shall not, ----------------------------------- and shall not permit any Subsidiary to, directly or indirectly, make or permit to exist any loans or advance money or property to any Personperson, or invest in (by capital contribution, dividend or otherwise) oror purchase or repurchase the shares 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 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, provided, that, in:
(i) no -------- ---- Loans are then outstanding and short-term direct obligations of the Canadian Government;
(ii) negotiable certificates of deposit issued by any bank satisfactory to Lender, payable to the order of the Borrower or to bearer and delivered to Lender; and
(iii) commercial paper rated A1 or P1; PROVIDED, THAT, as to any of the foregoing, unless waived in writing by Lender, Borrower and Guarantor shall take such actions as are deemed necessary by Lender to perfect the security interest of Lender in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) the guarantee by Guarantor guarantees set forth in the Information Certificate of the Obligations of Borrower in favor of LenderBorrower;
(d) the existing equity investments of Borrower and Guarantor in its Subsidiaries as set forth on Schedule 7.1 guarantees issued or, to the Information Certificate extent required by the terms of the indenture governing the Senior Notes as in effect on the date of this Agreement or any indenture governing notes issued in replacement of the Senior Notes; PROVIDED THAT, such replacement notes do not provide for a higher interest rate, a maturity date or any principal payments during the term of this Agreement, and otherwise contain provisions reasonably satisfactory to Lender and the existing investment holders of Borrower (as successor by merger such replacement notes have executed agreements providing for the subordination of such notes to Rubatex) in NeoCork Technologies, L.L.C., provided, that, in each case, Borrower the Obligations on terms and Guarantor shall -------- ---- not have any obligation conditions reasonably satisfactory to make any other or further investment or incur any liability in connection with any such investmentLender;
(e) stock Permitted Acquisitions and any transaction permitted by Sections 9.1 or obligations issued to Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due Accounts; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral Agent, upon Lender's request, together with such stock power, assignment or endorsement by Borrower or Guarantor as Lender may request9.7 hereof;
(f) obligations of account debtors to Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, by Borrower, Guarantor or Subsidiary (as the case may be) and promptly delivered to Collateral Agent as so endorsed;
(g) loans or advances by Borrowerto, Guarantor or investments in, or purchases or repurchases of the Securities, assets or indebtedness of any of their respective Subsidiaries to the US Borrowers, or GL UK or guarantees or the assumption of letter of credit obligations for the benefit of any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of Borrower's, Guarantor's US Borrower 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 Borrower, Guarantor or Subsidiary, as the case may be;
(h) any investments of Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, 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;GL UK; PROVIDED THAT,
(i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require, and (C) as of the date of any such loan and after giving effect thereto, no Event of Default, or act, condition or an event which with notice or passage of time or both would constitute an Event of Default shall exist Default, exists or have has occurred and be continuingis continuing immediately prior to and after giving effect to any such loan, advance, investment, purchase, repurchase, guarantee or assumption of letter of credit obligation,
(ii) as such loans, advances, investments, purchases or repurchases do not violate the capitalization requirements of Borrower under applicable laws, and
(iii) such loans or advances are evidenced by a promissory note or notes (which notes shall be secured by a guarantee and pledge agreement dated March 23, 2000 by GeoLogistics Holdings (Bermuda) Limited) the date rights to which have been collaterally pledged to Lender;
(g) loans or advances to GIFL or GLC; PROVIDED THAT,
(i) no Event of any such loan by Borrower Default, or an event which with notice or passage of time or both would constitute an Event of Default, exists or has occurred and is continuing immediately prior to Guarantor, and after giving effect theretoto such loans or advances,
(ii) such loans or advances do not violate the capitalization requirements of Borrower, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof;applicable laws,
(iii) as to loans by Guarantor to Borrower, (A) all the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment proceeds of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered loans or advances are immediately loaned or advanced by such Guarantor and Borrower, and (C) Borrower shall not, directly GIFL 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;
(k) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate, provided, that, as to such loans, advances -------- ---- and guarantees, (i) Borrower, Guarantor, or their respective SubsidiariesGLC, as the case may be, to a US Borrower or GL UK, and
(iv) such loans or advances are evidenced by a promissory note or notes (which notes shall notbe secured by a guarantee and pledge agreement dated March 23, directly 2000 by GeoLogistics Holdings (Bermuda) Limited) the rights to which have been collaterally pledged to Lender;
(h) loans or indirectlyadvances to GLC (i) for the purpose of paying interest due under the Senior Notes, (Aii) amend, modify, alter for the purpose of paying management fees to Sponsor or change any of their affiliates in an aggregate amount for Borrower not to exceed the Canadian Dollar Amount of Seven Hundred Thousand US Dollars (US$700,000) (such amount is not to include amounts in respect of the one-time loan or advance by US Borrowers to GLC which shall not to exceed One Hundred Seventy Five Thousand US Dollars (US$175,000) for the purpose of paying unpaid management fees to the Sponsors or any of their affiliates earned during US Borrowers' 1999 fiscal year) less amounts paid by US Borrowers or GL UK to GLC for such purpose in any material respect fiscal year of Borrower and (iii) for the terms other purposes set forth in Schedule 9.10(h) attached hereto in an aggregate amount for Borrower not to exceed the Canadian Dollar Amount of Twenty One Million US Dollars (US$21,000,000) less amounts paid by US Borrowers or GL UK to GLC for such purposes in any fiscal year of Borrower, PROVIDED THAT,
(i) no Event of Default, or an event which with notice or passage of time or both would constitute an 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 Borrower under applicable laws, and
(iii) such loans or advances are evidenced by a promissory note or notes (which notes shall be secured by a guarantee and pledge agreement dated March 23, 2000 by GeoLogistics Holdings (Bermuda) Limited) the rights to which have been collaterally pledged to Lender;
(i) loans or advances to, or guarantees or the assumption of letter of credit obligations for the benefit of, GLC or a Subsidiary of GLC (other than Borrower, a US Borrower or GL UK); PROVIDED THAT,
(i) no Event of Default, or an event which with notice or passage of time or both would constitute an Event of Default, exists or has occurred and is continuing immediately prior to and after giving effect to such loans, advances, guarantees or assumption of letter of credit obligations,
(ii) such loans, advances, guarantees or assumption of letter of credit obligations do not violate the capitalization requirements of Borrower under applicable laws,
(iii) if such loans, advances, guarantees or assumption of letter of credit obligations are made on or prior to April 15, 2000, Total Excess Availability exceeds Fifteen Million US Dollars (US$15,000,000) immediately prior to and after giving effect to such loans, advances or guarantees or any agreement, document assumption of letter of credit obligations or instrument related thereto, 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) Borrower shall furnish to Lender all notices or demands in connection with if such loans, advances, guarantees or assumption of letter of credit obligations are made after April 15, 2000, Total Excess Availability exceeds Ten Million US Dollars (US$10,000,000) immediately prior to and after giving effect to such loans, advances, guarantees or assumption of letter of credit obligations, and
(iv) such loans or advances are evidenced by a promissory note or guarantees received notes (which notes shall be secured by a guarantee and pledge agreement dated March 23, 2000 by GeoLogistics Holdings (Bermuda) Limited) the rights to which have been collaterally pledged to Lender;
(j) other outstanding loans or advances by Borrower not to exceed the Canadian Dollar Amount of Two Hundred and Fifty Thousand US Dollars (US$250,000) in the aggregate at any Borrower, Guarantor or Subsidiary or on its behalf, promptly after the receipt thereof or sent by any Borrower, Guarantor or Subsidiary or on its behalf, concurrently with the sending thereoftime.
Appears in 1 contract
Samples: Loan Agreement (Geologistics Corp)
Loans, Investments, Guarantees, Etc. Each Borrower and Guarantor shall not, ----------------------------------- and shall not permit any Subsidiary to, directly or indirectly, make or permit to exist any loans or advance money or property to any Person, or invest in (by capital contribution, dividend or otherwise) oror 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 Person or hold any cash or Cash Equivalents. or form or acquire any Subsidiaries, or agree to do any of the foregoing, except:
(a) guarantees by any Borrower or Guarantor of the Obligations in favor of Agent and Lenders;
(b) the endorsement of instruments for collection or deposit in the ordinary course of business;
(bc) investments in cash or Cash Equivalents, provided, that, (i) Equivalents so long as there are no -------- ---- Loans are then outstanding and (ii) as such investments are pledged and delivered to any of the foregoing, unless waived in writing by Lender, Borrower and Guarantor shall take such actions as are deemed necessary by Lender to perfect the security interest of Lender in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) the guarantee by Guarantor of the Obligations of Borrower in favor of LenderAgent upon Agent's request;
(d) the existing equity investments of each Borrower and Guarantor as of the date hereof in its respective Subsidiaries as set forth on Schedule 7.1 to of the Information Certificate and the existing investment of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C., provided, that, in each case, Borrower and Guarantor shall -------- ---- not have any obligation to make any other or further investment or incur any liability in connection with any such investmentdate hereof;
(e) stock or obligations issued to a Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due AccountsPerson; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral Agent, upon LenderAgent's request, together with such stock power, assignment or endorsement by such Borrower or Guarantor as Lender Agent may request;
(f) obligations of or account debtors to a Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to such Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by such Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, for itself and the ratable benefit of Lenders, by Borrower, Guarantor or Subsidiary (as the case may be) such Borrower and promptly delivered to Collateral Agent as so endorsed;
(g) loans or and advances by any Borrower, Guarantor or any Subsidiary to employees of their respective Subsidiaries to any of its employeessuch Borrower, after the date hereof, Guarantor or Subsidiary not to exceed the principal amount of $300,000 1,000,000 in the aggregate at any time outstanding in the ordinary course of Borrower's, Guarantor's or Subsidiary's business for reasonable for: (i) reasonably and necessary work-related travel and or other ordinary business expenses to be incurred by such employees employee in connection with their employment with work for such Borrower, Guarantor or Subsidiary, as the case may beSubsidiary and (ii) reasonable and necessary relocation expenses of such employees (including home mortgage financing for relocated employees);
(h) any investments the existing equity investment of BorrowerWashington in WIS Brasil Boucinhas Xxxxxx Inventory Service Ltda., Guarantor or any a Brazilian corporation based in Sao Paulo, Brazil, of their respective Subsidiaries which Washington owns fifty-one (51%) percent of all of the issued and outstanding shares of Capital Stock and the existing equity investment of Washington in interest rate swap agreementsJapan Asset Inventory Co. Ltd., interest rate cap agreementsa Japanese corporation, interest rate collar agreementsof which Washington owns twenty (20%) percent of all of the issued and outstanding shares of Capital Stock, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, such -------- ---- arrangements are with banks in no event shall any Borrower or Guarantor have any obligation or liability, direct or indirect, to make any further capital or other financial institutions that contributions or payments in respect of such corporations or have combined capital and surplus and undivided profits of not less than $250,000,000 and are not for speculative purposes and are unsecuredany obligation or liability in connection with such corporations;
(i) the guarantee Farmington Bond Guarantee by Borrower Huffy in favor of Prudential with respect to the obligations of the Indebtedness City of Guarantor Farmington, Missouri evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, Farmington Bonds as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require, and (C) as of the date of any such loan and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any such loan by Borrower to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof;
(iii) as to loans by Guarantor to Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and Borrower, and (C) 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;
(k) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate, provided, that, as to such loans, advances -------- ---- and guaranteesguarantee, (i) Borrowerthe Indebtedness arising pursuant to such guarantee is for all purposes Term Loan Senior Debt and Term Loan Subordinated Debt included in the amounts set forth in Section 9.9(c)(xi) hereof and subject to the terms of Section 9.9(c)(xvi) hereof and the Intercreditor Agreement, Guarantor, or their respective Subsidiaries, as the case may be, (ii) Borrowers and Guarantors shall not, directly or indirectly, (A) amend, modify, alter or change the terms of such guarantee or any agreement, document or instrument related thereto, or (B) redeem, retire, defease, purchase or otherwise acquire the obligations arising pursuant to such guarantee, or set aside or otherwise deposit or invest any sums for such purpose, and (iii) Borrowers and Guarantors shall furnish to Agent all notices or demands in connection with such guarantee or the Indebtedness subject to such guarantee either received by any material Borrower or Guarantor or on its behalf, promptly after the receipt thereof, or sent by any Borrower or Guarantor or on its behalf, concurrently with the sending thereof, as the case may be;
(j) loans by any Borrower to any other Borrower to the extent the Indebtedness of such Borrower arising pursuant to such loans are permitted under Section 9.9(g);
(k) loans by any Guarantor or any Subsidiary of any Guarantor to any Borrower to the extent the Indebtedness of such Borrower to such Guarantor (or Subsidiary) arising pursuant to such loans is permitted under Section 9.9(h) hereof;
(l) loans by any Guarantor to any other Guarantor to the extent the Indebtedness of such Guarantor to such Borrower arising pursuant to such loans is permitted under Section 9.9(i) hereof;
(m) unsecured guarantees by any Borrower, Guarantor or any of their respective Subsidiaries of the obligations of any Borrower, Guarantor or other Subsidiary of any Borrower or Guarantor to any third party with respect to leases of real property or personal property in the ordinary course of business and other such unsecured guarantees, provided, that, (i) the aggregate amount of the liability of all Borrowers pursuant to such other unsecured guarantees shall not exceed $250,000 in the aggregate and (ii) as to all such guarantees, no Borrower shall guarantee any obligations of any Subsidiary of any Borrower or Guarantor which is not a Borrower or Guarantor;
(n) loans by any Borrower to senior management employees of such Borrower in connection with a proposed Business Unit Sale of the assets or Capital Stock of such Borrower, provided, that, (i) promptly upon Agent's request, Borrowers shall provide to Agent a copy or the original of all agreements evidencing or relating to such arrangements, including the original of any note evidencing the Indebtedness arising pursuant to such loans, and such other information with respect thereto as Agent may request, and (ii) the aggregate amount of such loans, together with the amounts which Borrowers may be required to pay (whether contingent upon a Business Unit Sale or otherwise) pursuant to the severance arrangements and retention agreements permitted under Section 9.9(l) hereof, shall not exceed the applicable amount allowed as set forth in Exhibit E to the Intercreditor Agreement;
(o) the existing loans, advances and guarantees by any Borrower and Guarantor outstanding as of the date hereof as set forth on Schedule 9.10 hereto; provided, that, as to such loans, advances and guarantees, (i) such Borrower and Guarantor shall not, directly or indirectly, (A) amend, modify, alter or change the terms of such 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 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) Borrower Borrowers and Guarantor shall furnish to Lender Agent all notices or demands in connection with such loans, advances or guarantees either received by any Borrower, Borrower or Guarantor or Subsidiary or on its behalf, promptly after the receipt thereof thereof, or sent by any Borrower, Borrower or Guarantor or Subsidiary or on its behalf, concurrently with the sending thereof, as the case may be.
Appears in 1 contract
Loans, Investments, Guarantees, Etc. Each Borrower and Guarantor shall not, ----------------------------------- and shall not permit any Subsidiary to, directly or indirectly, make or permit to exist any loans or advance money or property to any Person, or invest in (by capital contribution, dividend or otherwise) oror 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 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 -------- ---- Loans are then outstanding and (ii) as to any of the foregoing, unless waived in writing by LenderAgent, Borrower and Guarantor shall take such actions as are deemed necessary by Lender Agent to perfect the security interest of Lender Agent in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) the guarantee by Guarantor existing equity investments of such Borrower as of the Obligations of 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 favor of Lenderrespect of, any such Subsidiaries;
(d) guarantees by any Subsidiaries of any Borrower of the existing equity investments Obligations in favor of Borrower Agent and Guarantor in its Subsidiaries as set forth on Schedule 7.1 to the Information Certificate and the existing investment of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C., provided, that, in each case, Borrower and Guarantor shall -------- ---- not have any obligation to make any other or further investment or incur any liability in connection with any such investmentLenders;
(e) stock or obligations issued to such Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due AccountsPerson; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral Agent, upon Lender's Agent’s request, together with such stock power, assignment or endorsement by such Borrower or Guarantor as Lender Agent may request;
(f) obligations of account debtors to such Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to such Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by such Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, Agent by Borrower, Guarantor or Subsidiary (as the case may be) such Borrower and promptly delivered to Collateral Agent as so endorsed;
(g) loans or advances by Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of 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 Borrower, Guarantor or Subsidiary, as the case may be;
(h) any investments of Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, 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;
(i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require, and (C) as of the date of any such loan and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any such loan by Borrower to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof;
(iii) as to loans by Guarantor to Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and Borrower, and (C) 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;
(k) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate, 9.10 hereto; provided, that, as to such loans, advances -------- ---- and guarantees, (i) Borrowersuch Borrower may only make regularly scheduled payments of principal and interest in respect of such Indebtedness in accordance with the terms of the agreement or instrument evidencing or giving rise to such Indebtedness as in effect on the date hereof, Guarantor, or their respective Subsidiaries, as the case may be, (ii) such Borrower shall not, directly or indirectly, (A) amend, modify, alter or change in any material respect the terms of such loans, advances or guarantees Indebtedness or any agreement, document or instrument related theretothereto as in effect on the date hereof except, that, such Borrower may, 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 any portion of such Indebtedness (other than pursuant to payments thereof), or to reduce the interest rate or any fees in connection therewith, or (B) as to such guarantees, redeem, retire, defease, purchase or otherwise acquire such guarantee Indebtedness, 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) purpose, and (iiiii) such Borrower shall furnish to Lender Agent all notices or demands in connection with such loans, advances or guarantees Indebtedness either received by any Borrower, Guarantor or Subsidiary such Borrower or on its behalf, promptly after the receipt thereof thereof, or sent by any Borrower, Guarantor or Subsidiary such Borrower or on its behalf, concurrently with the sending thereof, as the case may be;
(h) loans by such Borrower to any other Borrower after the date hereof;
(i) the transactions contemplated by the Junkfood Purchase Documents;
(j) Permitted Acquisitions;
(k) upfront advances by such Borrower for anticipated royalties under License Agreements entered into by such Borrower in the ordinary course of business of such Borrower consistent with the current practices of such Borrower as of the date hereof; and
(l) investments in the Honduras JV not to exceed an aggregate amount of $3,000,000 during the term of this Agreement.
Appears in 1 contract
Loans, Investments, Guarantees, Etc. Borrower and Guarantor shall not, ----------------------------------- and NSC shall not permit any Subsidiary to, directly or indirectly, make or permit to exist any loans or advance money or property to any Personperson, or invest in (by capital contribution, dividend or otherwise) or
or purchase or repurchase the 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 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, provided, that, in: (i) no -------- ---- Loans are then outstanding and short-term direct obligations of the United States Government, (ii) negotiable certificates of deposit issued by any bank satisfactory to Lender, payable to the order of the Borrower or to bearer and delivered to Lender, and (iii) commercial paper rated A1 or P1; PROVIDED THAT, as to any of the foregoing, unless waived in writing by Lender, Borrower and Guarantor NSC shall take such actions as are deemed necessary by Lender to perfect the security interest of Lender in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
; (c) the guarantee by Guarantor of the Obligations of Borrower in favor of Lender;
(d) the existing equity investments of Borrower and Guarantor in its Subsidiaries as set forth on Schedule 7.1 to the Information Certificate and the existing investment of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C., provided, that, in each case, Borrower and Guarantor shall -------- ---- not have any obligation to make any other or further investment or incur any liability in connection with any such investment;
(e) stock or obligations issued to Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due Accounts; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral Agent, upon Lender's request, together with such stock power, assignment or endorsement by Borrower or Guarantor as Lender may request;
(f) obligations of account debtors to Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, by Borrower, Guarantor or Subsidiary (as the case may be) and promptly delivered to Collateral Agent as so endorsed;
(g) loans or advances by Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of 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 Borrower, Guarantor or Subsidiary, as the case may be;
(h) any investments of Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, 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;
(i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require, and (C) as of the date of any such loan and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any such loan by Borrower to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof;
(iii) as to loans by Guarantor to Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and Borrower, and (C) 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;
(k) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate15.9 hereto; PROVIDED, provided, thatTHAT, as to such loans, advances -------- ---- and guarantees, (i) Borrower, Guarantor, or their respective Subsidiaries, as the case may be, Borrower and NSC 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, or (B) as to such guarantees, redeem, retire, defease, purchase or otherwise acquire the obligations arising pursuant to such guarantee guarantees, 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) purpose, and (ii) Borrower and NSC shall furnish to Lender all notices or demands in connection with such loans, advances or guarantees or other indebtedness subject to such guarantees either received by any Borrower, Guarantor Borrower or Subsidiary NSC or on its behalf, promptly after the receipt thereof thereof, or sent by any Borrower, Guarantor a Borrower or Subsidiary NSC or on its behalf, concurrently with the sending thereof, as the case may be; and (d) loans and advances not in excess of the amount of $500,000 outstanding in the aggregate for all such loans and advances during the term of this Extension Agreement ; provided that no such loan or advance shall be made to any Affiliate of Borrower or any Person described on Schedule 15.21 hereto.
Appears in 1 contract
Samples: Extension and Modification and Security Agreement (Nutritional Sourcing Corp)
Loans, Investments, Guarantees, Etc. Borrower and Guarantor shall not, ----------------------------------- and shall not permit any Subsidiary of its Subsidiaries to, directly or indirectly, make or permit to exist any loans or advance money or property to any Personperson, or invest in (by capital contribution, dividend or otherwise) oror 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 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, providedPROVIDED, thatTHAT, (i) no -------- ---- Revolving Loans are then outstanding outstanding, and (ii) as to any of the foregoing, unless waived in writing by Lender, Borrower and Guarantor shall take such actions as are deemed necessary by Lender to perfect the security interest of Lender in such investments, including the execution and delivery of EXCEPT, THAT, even if Revolving Loans are outstanding, Borrower may invest in cash or Cash Equivalents on an Investment Property Control Agreement by the person then in possession of such investmentsovernight basis for cash management purposes;
(c) the guarantee existing equity investments of Borrower as of the date hereof in its Subsidiaries listed on the Information Certificate, 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) guarantees by Guarantor any Subsidiaries of Borrower of the Obligations of Borrower in favor of Lender;
(de) unsecured guarantees by Borrower with respect to the existing equity investments obligations of Subsidiaries of Borrower incurred by such Subsidiaries in the ordinary course of business as conducted on the date hereof and Guarantor arising pursuant to leases by such Subsidiaries of real property, PROVIDED, THAT, the liability of Borrower pursuant to such guarantees at any time outstanding shall not in its Subsidiaries the aggregate exceed the US Dollar Equivalent of US $1,000,000 with respect to any leased location;
(f) unsecured loans by any Subsidiary of Borrower to Borrower existing on the date hereof (as set forth on Schedule 7.1 to the Information Certificate and the existing investment of Borrower (as successor by merger to Rubatex9.10(f) in NeoCork Technologies, L.L.C., provided, that, in each case, Borrower and Guarantor shall -------- ---- not have any obligation to make any other or further investment or incur any liability in connection with any such investment;
(e) stock or obligations issued to Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due Accounts; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral Agent, upon Lender's request, together with such stock power, assignment or endorsement by Borrower or Guarantor as Lender may request;
(f) obligations of account debtors to Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, by Borrower, Guarantor or Subsidiary (as the case may behereto) and promptly delivered to Collateral Agent as so endorsed;
(g) loans or advances by Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of Borrower'sPROVIDED, 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 Borrower, Guarantor or SubsidiaryTHAT, as the case may be;
(h) any investments of Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, 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;
(i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require, and (C) as of the date of any such loan and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any such loan by Borrower to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect each of the Indebtedness evidenced following conditions is satisfied as determined by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof;
Lender: (iii) as to loans by Guarantor to Borrower, (Ai) the Indebtedness arising pursuant to such loan shall be is subject to, and subordinate in right of payment to, the right of Lender to receive the prior final indefeasible payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (Bii) promptly upon Lender's request, Lender shall have received a subordination agreementreceived, in form and substance reasonably satisfactory to Lender, either (A) a subordination agreement providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor Subsidiary and BorrowerBorrower or (B) a promissory note made by Borrower evidencing such Indebtedness which provides for the subordination in right of payment of the Indebtedness of Borrower to such Subsidiary to the prior payment and satisfaction in full of all of the Obligations, and (Ciii) Borrower shall not, directly or indirectly make, or be required to make, any payments in respect of such Indebtedness prior Indebtedness, except as Lender may otherwise specifically agree in writing, (iv) each month Borrower shall provide to the end Lender a report in form and substance reasonably satisfactory to Lender of the then current term amount of this Agreementsuch loans made in the immediately preceding month, any repayments in connection therewith and the outstanding amount thereof as of the last day of the immediately preceding month, and (v) Indebtedness arising pursuant to such loans shall not be evidenced by a promissory note or other instrument, unless the single original of such note or other instrument is delivered to Lender to hold as part of the Collateral duly executed and delivered by Borrower, with such endorsement and/or assignment by the payee of such note or other instrument as Lender may require;
(kg) unsecured loans by any Subsidiary of Borrower to any other Subsidiary of Borrower after the date hereof, PROVIDED, THAT, as to any such loan, each of the following conditions is satisfied as determined by Lender:
(i) each month Borrower shall provide to Lender a report in form and substance reasonably satisfactory to Lender of the amount of such loans made in the immediately preceding month, any repayments in connection therewith and the outstanding amount thereof as of the last day of the immediately preceding month, (ii) Indebtedness arising pursuant to such loans shall not be evidenced by a promissory note or other instrument, unless the single original of such note or other instrument is delivered to Lender to hold as part of the Collateral duly executed and delivered by such Subsidiary of Borrower, with such endorsement and/or assignment by the payee of such note or other instrument as Lender may require and (iii) the existing loansIndebtedness arising pursuant to such loans is permitted under Section 9.9 hereof.
(h) stock or obligations issued to Borrower by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to Borrower in connection with the insolvency, advances and guarantees set forth on Schedule 8.10 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 Lender, upon Lender's request, together with such stock power, assignment or endorsement by Borrower as Lender may request;
(i) obligations of account debtors to Borrower arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to Borrower; PROVIDED, THAT, promptly upon the receipt of the original of any such promissory note by Borrower, such promissory note shall be endorsed to the Information Certificateorder of Lender by Borrower and promptly delivered to Lender as so endorsed; and
(j) loans by Borrower to any Subsidiary of Borrower, providedPROVIDED, that, as to the making of any such loansloan, advances -------- ---- and guarantees, each of the following conditions is satisfied as determined by Lender (i) each month Borrower shall provide to Lender a report in form and substance satisfactory to Lender of the amount of such loans made in the immediately preceding month, any repayments in connection therewith and the outstanding amount thereof as of the last day of 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 Lender to hold as part of the Collateral, with such endorsement and/or assignment by the payee of such note or other instrument as Lender may require, (iii) as of the date of the making of such loan and after giving effect thereto, the Borrower is and shall be Solvent, (iv) such loans shall be permitted to be made and paid under the laws and regulations applicable to Borrower, Guarantorand (v) as of the date of the making of any such loan and in each case after giving effect thereto, no Event of Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default, shall exist or have occurred and be continuing; and
(k) loans or advances by Borrower to any of its employees, after the date hereof, or guaranties made by Borrower of indebtedness or obligations of any of its employees not to exceed the principal amount of $50,000 in the aggregate at any time outstanding in the ordinary course of Borrower's business for reasonable and necessary work-related travel, moving, entertainment, employee assistance and other ordinary business expenses to be incurred by such employees in connection with their respective Subsidiariesemployment with Borrower, PROVIDED, THAT, as of the case may bedate of any such loan or guarantee thereof by Borrower and after giving effect thereto, no Event of Default shall not, directly exist or indirectly, have occurred and be continuing;
(Al) amend, modify, alter or change in any material respect the terms of such loans, advances or guarantees by Borrower or any agreementSubsidiary of Borrower made to secure Indebtedness other than as described in Section 9.10(a) and (d), document or instrument related theretoPROVIDED, or THAT, such guarantees are made in (Bi) 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 the ordinary course of business of Borrower with respect to the terms thereof or pursuant to regularly scheduled payments permitted herein) obligations of Subsidiaries and (ii) Borrower shall furnish to Lender all notices or demands do not, when aggregated with (A) the guarantees permitted under Sections 9.10(e) and (l) hereof and (B) the Copelco Repurchase Obligations, exceed $1,000,000 of Indebtedness in connection with such loans, advances or guarantees received by any Borrower, Guarantor or Subsidiary or on its behalf, promptly after the receipt thereof or sent by any Borrower, Guarantor or Subsidiary or on its behalf, concurrently with the sending thereofaggregate.
Appears in 1 contract
Samples: Loan and Security Agreement (Quad Systems Corp /De/)
Loans, Investments, Guarantees, Etc. Borrower and Guarantor shall not, ----------------------------------- and shall not permit any Subsidiary to, directly or indirectly, make or permit to exist any loans or advance money or property to any Personperson, or invest in (by capital contribution, dividend or otherwise) or
or purchase or repurchase the 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 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, provided, that, in: (i) no -------- ---- Loans are then outstanding and short-term direct obligations of the United States Government, (ii) negotiable certificates of deposit issued by any bank satisfactory to Lender, payable to the order of the Borrower or to bearer and delivered to Lender, and (iii) commercial paper rated A1 or P1; PROVIDED, THAT, as to any of the foregoing, unless waived in writing by Lender, Borrower and Guarantor shall take such actions as are deemed necessary by Lender to perfect the security interest of Lender in such investments, including the execution investments and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) the guarantee by Guarantor of the Obligations of Borrower in favor of Lender;
(d) the existing equity investments of Borrower and Guarantor in its Subsidiaries as set forth on Schedule 7.1 to the Information Certificate and the existing investment of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C., provided, that, in each case, Borrower and Guarantor shall -------- ---- not have any obligation to make any other or further investment or incur any liability in connection with any such investment;
(e) stock or obligations issued to Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due Accounts; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral Agent, upon Lender's request, together with such stock power, assignment or endorsement by Borrower or Guarantor as Lender may request;
(f) obligations of account debtors to Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, by Borrower, Guarantor or Subsidiary (as the case may be) and promptly delivered to Collateral Agent as so endorsed;
(g) loans or advances by Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of 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 Borrower, Guarantor or Subsidiary, as the case may be;
(h) any investments of Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, 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;
(i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require, and (C) as of the date of any such loan and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any such loan by Borrower to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof;
(iii) as to loans by Guarantor to Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and Borrower, and (C) 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;
(k) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate9.10 hereto; PROVIDED, provided, thatTHAT, as to such loans, advances -------- ---- and guarantees, (i) Borrower, Guarantor, or their respective Subsidiaries, as the case may be, Borrower 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, or (B) as to such guarantees, redeem, retire, defease, purchase or otherwise acquire the obligations arising pursuant to such guarantee guarantees, 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) purpose, and (ii) Borrower shall furnish to Lender all notices or demands in connection with such loans, advances or guarantees or other indebtedness subject to such guarantees either received by any Borrower, Guarantor or Subsidiary Borrower or on its behalf, promptly after the receipt thereof thereof, or sent by any Borrower, Guarantor or Subsidiary Borrower or on its behalf, concurrently with the sending thereof, as the case may be.
Appears in 1 contract
Loans, Investments, Guarantees, Etc. Borrower and Guarantor each Obligor shall not, ----------------------------------- and shall not permit any Subsidiary to, directly or indirectly, make or permit to exist any loans or advance money or property to any Personperson, or invest in (by capital contribution, dividend or otherwise) oror purchase or repurchase the shares 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 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 in: (i) short-term direct obligations of the Canadian Government or Cash Equivalentsthe United States Government, (ii) negotiable certificates of deposit issued by any bank satisfactory to Lender, payable to the order of Borrower or such Obligor or to bearer and delivered to Lender, and (iii) commercial paper rated Al or P1; provided, that, (i) no -------- ---- Loans are then outstanding and (ii) as to any of the foregoing, unless waived in writing by Lender, Borrower and Guarantor each Obligor shall take such actions as are deemed necessary by Lender and Agents to perfect the security interest Lien of Agents and/or Lender in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) the guarantee by Guarantor of the Obligations of Borrower in favor of LenderAcquisitions;
(d) travel advances, employee relocation loans and other employee loans and advances in the existing equity investments ordinary course of Borrower and Guarantor in its Subsidiaries as set forth on Schedule 7.1 to the Information Certificate and the existing investment business of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C., provided, that, in each case, Borrower and Guarantor shall -------- ---- not have any obligation to make any other or further investment or incur any liability in connection with any such investmentBorrower;
(e) stock or obligations issued to Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or loans, advances and other obligations of such Person owing to 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 or settlement or compromise of past due Accounts; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral Agent, upon Lender's request, together with such stock power, assignment or endorsement by Borrower or Guarantor as Lender may requestguarantees set forth on Schedule 8.10 hereto;
(f) any unsecured guarantees issued in the ordinary course of business by Borrower or Obligors to their suppliers, vendors and lessors with respect to the obligations of account debtors to Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to BorrowerObligors, Guarantor or Subsidiary (as the case may be); provided, thatto such suppliers, promptly upon the -------- ---- receipt of the original of any such promissory note by Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, by Borrower, Guarantor or Subsidiary (as the case may be) vendors and promptly delivered to Collateral Agent as so endorsedlessors;
(g) loans or advances by Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of Borrower's, Guarantor's or Subsidiary's business for reasonable and necessary workthat constitute Permitted Inter-related travel and other ordinary business expenses to be incurred by such employees in connection with their employment with Borrower, Guarantor or Subsidiary, as the case may be;Company Debt; and
(h) any investments of Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended Permitted 3rd Party Debt Guarantees (and US Collateral Agent and Lender agree to protect enter into a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, such -------- ---- arrangements are Permitted 3rd Party Debt Subordination Agreement 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;
(i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require, and (C) as of the date of any such loan and after giving effect respect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any such loan by Borrower to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof;
(iii) as to loans by Guarantor to Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and Borrower, and (C) 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;
(k) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate, ); provided, that, as to such loans, advances -------- ---- and guarantees, (i) Borrower, Guarantor, or their respective Subsidiaries, as the case may be, Borrower and each Obligor 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, or (B) as to such guarantees, redeem, retire, defease, purchase or otherwise acquire the obligations arising pursuant to such guarantee guarantees, 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) purpose, and (ii) Borrower and each Obligor shall furnish to Lender all notices or demands in connection with such loans, advances or guarantees or other indebtedness subject to such guarantees either received by any Borrower, Guarantor or Subsidiary each Obligor or on its behalf, promptly after the receipt thereof thereof, or sent by any Borrower, Guarantor or Subsidiary each Obligor or on its behalf, concurrently with the sending thereof, as the case may be. Notwithstanding the immediately preceding proviso, as to a Permitted 3rd Party Debt Guarantee, a Permitted 3rd Party Debt Obligor may (A) amend, modify, alter or change the terms of its Permitted 3rd Party Debt Guarantee or any agreement, document or instrument related thereto, or (B) redeem, retire, defease, purchase or otherwise acquire the Permitted 3rd Party Debt related thereto, or set aside or otherwise deposit or invest any sums for such purpose, all in accordance with the terms of the Permitted 3rd Party Debt, Permitted 3rd Party Debt Guarantee, and any Permitted 3rd Party Debt Subordination Agreement.
Appears in 1 contract
Loans, Investments, Guarantees, Etc. Each Borrower and Guarantor shall not, ----------------------------------- and shall not permit any Subsidiary to, directly or indirectly, make or permit to exist any loans or advance money or property to any Person, or invest in (by capital contribution, dividend or otherwise) oror 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 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 -------- ---- Loans are then outstanding and (ii) as to any of the foregoing, unless waived in writing by LenderAgent, Borrower and Guarantor shall take such actions as are deemed necessary by Lender Agent to perfect the security interest of Lender Agent in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) the guarantee by Guarantor existing equity investments of such Borrower as of the Obligations of 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 favor of Lenderrespect of, any such Subsidiaries;
(d) guarantees by any Subsidiaries of any Borrower of the existing equity investments Obligations in favor of Borrower Agent and Guarantor in its Subsidiaries as set forth on Schedule 7.1 to the Information Certificate and the existing investment of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C., provided, that, in each case, Borrower and Guarantor shall -------- ---- not have any obligation to make any other or further investment or incur any liability in connection with any such investmentLenders;
(e) stock or obligations issued to such Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due AccountsPerson; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral Agent, upon LenderAgent's request, together with such stock power, assignment or endorsement by such Borrower or Guarantor as Lender Agent may request;
(f) obligations of account debtors to such Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to such Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by such Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, Agent by Borrower, Guarantor or Subsidiary (as the case may be) such Borrower and promptly delivered to Collateral Agent as so endorsed;
(g) loans or advances by Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of 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 Borrower, Guarantor or Subsidiary, as the case may be;
(h) any investments of Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, 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;
(i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require, and (C) as of the date of any such loan and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,
(ii) as of the date of any such loan by Borrower to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof;
(iii) as to loans by Guarantor to Borrower, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and Borrower, and (C) 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;
(k) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate, 9.10 hereto; provided, that, as to such loans, advances -------- ---- and guarantees, (i) Borrowersuch Borrower may only make regularly scheduled payments of principal and interest in respect of such Indebtedness in accordance with the terms of the agreement or instrument evidencing or giving rise to such Indebtedness as in effect on the date hereof, Guarantor, or their respective Subsidiaries, as the case may be, (ii) such Borrower shall not, directly or indirectly, (A) amend, modify, alter or change in any material respect the terms of such loans, advances or guarantees Indebtedness or any agreement, document or instrument related theretothereto as in effect on the date hereof except, that, such Borrower may, 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 any portion of such Indebtedness (other than pursuant to payments thereof), or to reduce the interest rate or any fees in connection therewith, or (B) as to such guarantees, redeem, retire, defease, purchase or otherwise acquire such guarantee Indebtedness, 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) purpose, and (iiiii) such Borrower shall furnish to Lender Agent all notices or demands in connection with such loans, advances or guarantees Indebtedness either received by any Borrower, Guarantor or Subsidiary such Borrower or on its behalf, promptly after the receipt thereof thereof, or sent by any Borrower, Guarantor or Subsidiary such Borrower or on its behalf, concurrently with the sending thereof, as the case may be;
(h) loans by such Borrower to any other Borrower after the date hereof;
(i) the transactions contemplated by the Junkfood Purchase Documents;
(j) Permitted Acquisitions;
(k) upfront advances by such Borrower for anticipated royalties under License Agreements entered into by such Borrower in the ordinary course of business of such Borrower consistent with the current practices of such Borrower as of the date hereof; and
(l) investments in the Honduras JV not to exceed an aggregate amount of $3,000,000 during the term of this Agreement.
Appears in 1 contract
Loans, Investments, Guarantees, Etc. Borrower and Guarantor shall not, ----------------------------------- and shall not permit any Subsidiary to, directly or indirectly, make or permit to exist any loans or advance money or property to any Personperson, or invest in (by capital contribution, dividend or otherwise) oror 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 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) as to any of the foregoing, unless waived in writing by Lender, Borrower and Guarantor shall take such actions as are deemed necessary by Lender to perfect the security interest of Lender in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) the guarantee by Guarantor of the Obligations of Borrower in favor of Lender;
(d) the existing equity investments of Borrower and Guarantor as of the date hereof in its Subsidiaries as set forth on Schedule 7.1 to the Information Certificate and the existing investment of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C.Subsidiaries, provided, that, in each case, Borrower and Guarantor shall -------- ---- not have any no obligation to make any other investment in, or further investment loans to, or incur any liability other payments in connection with respect of, any such investmentSubsidiaries;
(d) guarantees by any Subsidiaries of Borrower of the Obligations in favor of Lender;
(e) stock or obligations issued to Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due AccountsPerson; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral AgentLender, upon Lender's ’s request, together with such stock power, assignment or endorsement by Borrower or Guarantor as Lender may request;
(f) obligations of or account debtors to Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, Lender by Borrower, Guarantor or Subsidiary (as the case may be) Borrower and promptly delivered to Collateral Agent Lender as so endorsed;
(g) loans or advances by Borrower, Borrower to Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed provided, that, (i) the principal aggregate amount of $300,000 in the aggregate all such loans at any time outstanding in shall not exceed $250,000, (ii) as of the ordinary course date of Borrower'sany such loan and after giving effect thereto, Guarantor's or Subsidiary's business for reasonable and necessary work-related travel and other ordinary business expenses to Excess Availability shall be incurred by such employees in connection with their employment with Borrower, Guarantor or Subsidiary, as the case may be;
(h) any investments of Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, 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;
(i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require1,500,000, and (Ciii) as of the date of any such loan and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,occurred;
(iih) as of the date of any such loan purchases by Borrower of its Capital Stock from time to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due time substantially contemporaneously with the making giving of such loan shares to employees to the extent necessary to match contributions by such employees to the 401(k) plan maintained by Borrower in respect accordance with the terms of such plan as in effect on the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) date hereof;
(iii) as to loans by Guarantor to Borrower, (Ai) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and Borrower, and (C) 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;
(k) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate, 9.10 hereto; provided, that, as to such loans, advances -------- ---- and guarantees, (i) Borrower, Guarantor, or their respective Subsidiaries, as the case may be, Borrower 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, or (B) as to such guarantees, redeem, retire, defease, purchase or otherwise acquire the obligations arising pursuant to such guarantee guarantees, 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) purpose, and (ii) Borrower shall furnish to Lender all notices or demands in connection with such loans, advances or guarantees or other Indebtedness subject to such guarantees either received by any Borrower, Guarantor or Subsidiary Borrower or on its behalf, promptly after the receipt thereof thereof, or sent by any Borrower, Guarantor or Subsidiary Borrower or on its behalf, concurrently with the sending thereof, as the case may be.
Appears in 1 contract
Samples: Loan and Security Agreement (Inverness Medical Innovations Inc)
Loans, Investments, Guarantees, Etc. Borrower and Guarantor shall not, ----------------------------------- and shall not permit any Subsidiary to, directly or indirectly, make or permit to exist any loans or advance money or property to any Personperson, or invest in (by capital contribution, dividend or otherwise) oror 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 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) as to any of the foregoing, unless waived in writing by Lender, Borrower and Guarantor shall take such actions as are deemed necessary by Lender to perfect the security interest of Lender in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) the guarantee by Guarantor of the Obligations of Borrower in favor of Lender;
(d) the existing equity investments of Borrower and Guarantor as of the date hereof in its Subsidiaries as set forth on Schedule 7.1 to the Information Certificate and the existing investment of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C.Subsidiaries, provided, that, in each case, Borrower and Guarantor shall -------- ---- not have any no obligation to make any other investment in, or further investment loans to, or incur any liability other payments in connection with respect of, any such investmentSubsidiaries;
(d) guarantees by any Subsidiaries of Borrower of the Obligations in favor of Lender;
(e) stock or obligations issued to Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due AccountsPerson; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral AgentLender, upon Lender's request, together with such stock power, assignment or endorsement by Borrower or Guarantor as Lender may request;
(f) obligations of or account debtors to Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, Lender by Borrower, Guarantor or Subsidiary (as the case may be) Borrower and promptly delivered to Collateral Agent Lender as so endorsed;
(g) loans or advances by Borrower, Borrower to Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed provided, that, (i) the principal aggregate amount of $300,000 in the aggregate all such loans at any time outstanding in shall not exceed $250,000, (ii) as of the ordinary course date of Borrower'sany such loan and after giving effect thereto, Guarantor's or Subsidiary's business for reasonable and necessary work-related travel and other ordinary business expenses to Excess Availability shall be incurred by such employees in connection with their employment with Borrower, Guarantor or Subsidiary, as the case may be;
(h) any investments of Borrower, Guarantor or any of their respective Subsidiaries in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreements, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates provided, that, 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;
(i) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide to Lender a report in form and substance satisfactory to Lender 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, (B) 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 Lender 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 Lender may require1,500,000, and (Ciii) as of the date of any such loan and after giving effect thereto, no Event of Default, or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,occurred;
(iih) as of the date of any such loan purchases by Borrower of its Capital Stock from time to Guarantor, and after giving effect thereto, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due time substantially contemporaneously with the making giving of such loan shares to employees to the extent necessary to match contributions by such employees to the 401(k) plan maintained by Borrower in respect accordance with the terms of such plan as in effect on the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) date hereof;
(iii) as to loans by Guarantor to Borrower, (Ai) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and Borrower, and (C) 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;
(k) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate, 9.10 hereto; provided, that, as to such loans, advances -------- ---- and guarantees, (i) Borrower, Guarantor, or their respective Subsidiaries, as the case may be, Borrower 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, or (B) as to such guarantees, redeem, retire, defease, purchase or otherwise acquire the obligations arising pursuant to such guarantee guarantees, 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) purpose, and (ii) Borrower shall furnish to Lender all notices or demands in connection with such loans, advances or guarantees or other Indebtedness subject to such guarantees either received by any Borrower, Guarantor or Subsidiary Borrower or on its behalf, promptly after the receipt thereof thereof, or sent by any Borrower, Guarantor or Subsidiary Borrower or on its behalf, concurrently with the sending thereof, as the case may be.
Appears in 1 contract
Loans, Investments, Guarantees, Etc. Borrower and Guarantor shall not, ----------------------------------- and shall not permit any Subsidiary to, directly or indirectly, make make, or suffer or permit to exist exist, any loans or advance money or property to any Personperson, or invest any investment in (by capital contribution, dividend or otherwise) oror 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 -------- ---- Loans are then outstanding and (ii) as to any of the foregoing, unless waived in writing by Lender, Borrower and Guarantor shall take such actions as are deemed necessary by Lender to perfect the security interest of Lender in such investments, including the execution and delivery of an Investment Property Control Agreement by the person then in possession of such investments;
(c) the guarantee by Guarantor of the Obligations of Borrower in favor of Lender;
(d) the existing equity investments of Borrower and Guarantor as of the date hereof in its Subsidiaries as set forth on Schedule 7.1 to the Information Certificate and the existing investment of Borrower (as successor by merger to Rubatex) in NeoCork Technologies, L.L.C.Subsidiaries, provided, that, in each case, Borrower and Guarantor shall -------- ---- not have any no obligation to make any other investment in, or further investment loans to, or incur any liability other payments in connection with respect of, any such investmentSubsidiaries;
(ed) stock or obligations issued to Borrower or Guarantor by any Person (or the representative of such Person) in respect of Indebtedness or other obligations of such Person owing to 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 or settlement or compromise of past due AccountsPerson; provided, that, the original of any such stock -------- ---- or instrument evidencing such obligations shall be promptly delivered to Collateral AgentLender, upon Lender's request, together with such stock power, assignment or endorsement by Borrower or Guarantor as Lender may request;
(fe) obligations of or account debtors to Borrower or Guarantor (or any of their respective Subsidiaries) arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to Borrower, Guarantor or Subsidiary (as the case may be); provided, that, promptly upon the -------- ---- receipt of the original of any such promissory note by Borrower, Guarantor or Subsidiary (as the case may be) such promissory note shall be endorsed to the order of Collateral Agent, Lender by Borrower, Guarantor or Subsidiary (as the case may be) Borrower and promptly delivered to Collateral Agent Lender as so endorsed;
(g) loans or advances by Borrower, Guarantor or any of their respective Subsidiaries to any of its employees, after the date hereof, not to exceed the principal amount of $300,000 in the aggregate at any time outstanding in the ordinary course of 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 Borrower, Guarantor or Subsidiary, as the case may be;
(hf) any investments of Borrower, Guarantor or any of their respective Subsidiaries Borrower in interest rate swap agreements, interest rate cap agreements, interest rate collar agreements, interest rate exchange agreements futures or forward hedging contracts or similar contractual arrangements intended to protect a Person against fluctuations in interest rates and currency swap agreementsrates, forward currency purchase agreements or similar contractual arrangements intended to protect a Person against fluctuations in currency exchange rates or the price of raw materials and other chemical products used or produced in the business of Borrower; provided, that, such -------- ---- arrangements are with banks or other financial institutions that have combined capital and surplus and undivided profits of not less than the $250,000,000 and are not for speculative purposes and are unsecuredunsecured (except that Indebtedness arising under or in connection with swap agreements with any Affiliate of Lender may be secured to the extent provided herein);
(g) the formation or acquisition by a Borrower 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) the guarantee by Borrower of the Indebtedness of Guarantor evidenced by or arising under the Senior Secured Notes, in each case to the extent such Indebtedness is permitted under, and in all respects subject to, Section 8.9 hereof, as such guarantee is in effect on the date hereof;
(i) as to all of such loans, (A) within thirty (30) days after the end of each fiscal month, Borrower shall provide cause any such Subsidiary to Lender a report execute and deliver to Lender, the following in form and substance satisfactory to Lender Lender, (A) an absolute and unconditional guarantee of payment 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 monthObligations, (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 Indebtedness arising pursuant to assets of any such loan shall not be evidenced by a promissory note or Subsidiary, (C) related UCC financing statements, and (D) such other instrumentagreements, unless the single original of such note or other instrument is promptly delivered to Lender 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 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 Subsidiaries to Lender, (ii) Borrower shall (A) 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 (CB) 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), (iii) the Subsidiary formed or acquired shall be engaged in a business related, ancillary or complementary to the businesses of Borrower permitted in this Agreement as determined by the Board of Directors (or managers in the case of a limited liability company) of Borrower, (iv) Borrower shall not use the proceeds of any Loans to consummate any investment in or payment required to be made in connection with the formation or acquisition of such Subsidiary,(v) Lender 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 Lender may reasonably request, and (B) true, correct and complete copies of all agreements, documents and instruments relating thereto, and (vi) as of the date of any such loan and after giving effect theretoloan, advance, capital contribution or other investment or payment by Borrower, no Event of Default, Default or act, condition or event which with notice or passage of time or both would constitute an Event of Default shall exist or have occurred and be continuing,; and
(iih) as of the date of any such loan by Borrower to Guarantorloans and advances set forth on Schedule 9.10 hereto; provided, and after giving effect theretothat, the Excess Availability shall be not less than $10,000,000, except that any such loan, the proceeds of which are used by Guarantor only to make a regularly scheduled payment of interest in cash or other immediately available funds due substantially contemporaneously with the making of such loan in respect of the Indebtedness evidenced by the Senior Secured Notes permitted under Section 8.9(c) hereof, shall be subject to Excess Availability being in the amounts required for such payments by Guarantor under Section 8.9(c) hereof;
(iii) as to such loans by Guarantor to Borrowerand advances, (A) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Lender, (B) promptly upon Lender's request, Lender shall have received a subordination agreement, in form and substance satisfactory to Lender, providing for the terms of the subordination in right of payment of such Indebtedness of Borrower to the prior final payment and satisfaction in full of all of the Obligations, duly authorized, executed and delivered by such Guarantor and Borrower, and (Ci) 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;
(k) the existing loans, advances and guarantees set forth on Schedule 8.10 to the Information Certificate, provided, that, as to such loans, advances -------- ---- and guarantees, (i) Borrower, Guarantor, 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, loans and advances or guarantees or any agreement, document or instrument related thereto, 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) thereto and (ii) Borrower shall furnish to Lender all notices or demands in connection with such loans, loans and advances or guarantees either received by any Borrower, Guarantor or Subsidiary Borrower or on its behalf, promptly after the receipt thereof thereof, or sent by any Borrower, Guarantor or Subsidiary Borrower or on its behalf, concurrently with the sending thereof, as the case may be.
Appears in 1 contract
