Loans, Investments, Guarantees, Etc. (a) the endorsement of instruments for collection or deposit in the ordinary course of business; (b) investments in: (i) short-term direct obligations of the United States Government, (ii) negotiable certificates of deposit issued by any bank satisfactory to Agent, payable to the order of the Borrower or to bearer and delivered to Agent, and (iii) commercial paper rated A1 or P1; provided, that, -------- ---- as to any of the foregoing, unless waived in writing by Agent, Borrower shall take such actions as are deemed necessary by Agent to perfect the security interest of Agent, for the ratable benefit of Lender, in such investments; (c) the existing investment of Borrower in the Capital Stock of Children's Products, Inc.; (d) capital contributions, loans or other payments by Borrower to any wholly-owned Subsidiary of Borrower formed after the date hereof in accordance with Section 9.7 or loans by Borrower to employees of Borrower after the date hereof, provided, that, 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 or for the formation or acquisition of all such Subsidiaries, together with all loans by Borrower to employees of Borrower, and amounts paid in connection with any merger or consolidation permitted under Section 10.7 hereof, exceed $1,500,000, (ii) at the time of any such 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, (iii) in the case of any loans by Borrower to a Subsidiary or employee, the indebtedness arising from such loans shall not be evidenced by any promissory note or other instrument, 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 50 the case of any loan by Borrower to employees of Borrower, such loans shall be for reasonable and necessary work-related travel or other ordinary business expenses to be incurred by such employees in connection with their work for Borrower or for the relocation of such employees in connection with their work for Borrower, or for any other purpose related in any manner to their employment by Borrower, and (v) 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 $2,500,000, 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 $1,000,000, and (e) the existing loans, advances and guarantees by Borrower outstanding as of the date hereof as set forth on Schedule 10.10 hereto; provided, that, as to such loans, advances and guarantees, (i) Borrower 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 and (ii) Borrower shall furnish to Agent all notices, demands or other materials in connection with such loans, advances or guarantees either received by Borrower or on its behalf, promptly after the receipt thereof, or sent by 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 each Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly, make any loans or advance money or property to any person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the Capital Stock or Indebtedness or all or a substantial part of the assets or property of any person, or guarantee, assume, endorse, or otherwise become responsible for (directly or indirectly) the Indebtedness, performance, obligations or dividends of any 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) short-term direct obligations of the United States Governmentin cash or Cash Equivalents, (ii) negotiable certificates of deposit issued by any bank satisfactory to Agent, payable to the order of the Borrower or to bearer and delivered to Agent, and (iii) commercial paper rated A1 or P1; provided, that, -------- ---- (i) no Loans are then outstanding, except that, notwithstanding that any Loans are outstanding, Borrower may from time to time in the ordinary course of business consistent with the current practices of Borrower as of the date hereof make deposits of cash or other immediately available funds in operating demand deposit accounts used for disbursements to the extent required to provide funds for amounts drawn or anticipated to be drawn shortly on such accounts and such funds may be held in Cash Equivalents consisting of overnight investments until so drawn (so long as such funds and Cash Equivalents are not held more than five (5) Business Days from the date of the initial deposit thereof and do not exceed $5,000,000 at any time) and (ii) as to any of the foregoing, unless waived in writing by promptly upon Agent's request, Borrower shall take such actions as are deemed necessary by Agent to perfect the security interest of Agent, for the ratable benefit of Lender, Agent in such investments;
(c) the existing investment loans of Borrower in the Capital Stock of Children's Products, Inc.;
money or property (dother than Collateral) capital contributions, loans or other payments by Borrower or any Guarantor to any wholly-owned Subsidiary of Borrower formed Person after the date hereof in accordance with Section 9.7 or loans investments by Borrower to employees of Borrower or any Guarantor by capital contribution in any Person after the date hereof, ; provided, that, as to any such loans or investments, each of the following conditions is satisfied as -------- ---- determined by Agent: (i) the Person receiving such loan or investment is engaged in no event shall a business related, ancillary or complimentary to the total amount business of capital contributions, loans or other amounts paid by Borrower to or for the formation or acquisition of all such Subsidiaries, together with all loans by Borrower to employees of Borrower, and amounts paid permitted in connection with any merger or consolidation permitted under Section 10.7 hereof, exceed $1,500,000this Agreement, (ii) at as of the time date of any such capital contribution, loan or other payment investment and after giving effect thereto, no Event of Default Default, or act, condition or event which with notice and or passage of time or both would 65 71 constitute an Event of Default, Default shall exist or have occurred, (iii) in the case of any loans by Borrower to a Subsidiary Person receiving such loan or employee, the indebtedness arising from such loans investment shall not be evidenced by any promissory note Subsidiary of any Guarantor or other instrument, unless Borrower formed or acquired after 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 Agentdate hereof, (iv) in 50 as of the case date of any such loan or investment and after giving effect thereto, the Excess Availability shall be not less than $35,000,000, (v) the aggregate amount of all such loans or investments shall not exceed $20,000,000 and the aggregate amount of all such loans and investments in any calendar year shall not exceed $10,000,000 and (vi) Agent shall have received (A) not less than ten (10) Business Days' prior written notice thereof setting forth in reasonable detail the nature and terms thereof, (B) true, correct and complete copies of all agreements, documents and instruments relating thereto and (C) such other information with respect thereto as Agent may reasonably request;
(d) the existing equity investments of Borrower and each Guarantor as of the date hereof in its Subsidiaries, provided, that, no Borrower or Guarantor shall have any further obligations or liabilities to make any capital contributions or other additional investments or other payments to or in or for the benefit of any of such Subsidiaries except as set forth on Schedule 9.10 hereto;
(e) loans and advances by Borrower or any Guarantor to employees of Borrower, Borrower or such loans shall be for reasonable Guarantor not to exceed the principal amount of $1,000,000 in the aggregate at any time outstanding for: (i) reasonably and necessary work-related travel or other ordinary business expenses to be incurred by such employees employee in connection with their work for Borrower such Borrower, such Guarantor or for the Subsidiary and (ii) reasonable and necessary relocation expenses of such employees (including home mortgage financing for relocated employees);
(f) unsecured guarantees by Borrower or any Guarantor of the obligations of any Subsidiary of Borrower or such 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, the aggregate amount of the liability of Borrower and Guarantors pursuant to such other unsecured guarantees shall not exceed $250,000 in the aggregate;
(g) guarantees by any Subsidiaries of Borrower or any Guarantor of the Obligations in favor of Agent and Lenders;
(h) stock or obligations issued to Borrower or any Guarantor by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to Borrower or such Guarantor in connection with their work for Borrowerthe insolvency, bankruptcy, receivership or for any other purpose related in any manner to their employment by Borrower, and (v) as reorganization of such Person or a composition or readjustment of the date debts of such Person; provided, that, the original of any such capital contributionstock or instrument evidencing such obligations shall be promptly delivered to Agent, loan upon Agent's request, together with such stock power, assignment or other paymentendorsement by Borrower or such Guarantor as Agent may request;
(i) obligations of account debtors to Borrower or any Guarantor arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to Borrower or such Guarantor; provided, that, promptly upon the daily average receipt of the Excess Availability for the immediately preceding thirty (30) consecutive day period shall be not less than $2,500,000, and as of the date original of any such capital contributionpromissory 66 72 note by Borrower or such Guarantor, loan or other payment and after giving effect thereto, the Excess Availability such promissory note shall be not less than $1,000,000, andendorsed to the order of Agent by Borrower and promptly delivered to Agent as so endorsed;
(ej) the existing loansunsecured guarantee by QS of the obligations of Bing Blanking L.L.C. arising pursuant to the Loan Agreement, advances and guarantees by Borrower outstanding dated as of the date hereof July 22, 1998, by and among Bing Blanking L.L.C., QS and Bank One, Michigan (formerly known as set forth on Schedule 10.10 hereto; NBD Bank), provided, that, as to such loans, advances and guaranteesguarantee, (i) Borrower QS shall -------- ---- not, and shall not permit Bing Blanking L.L.C. to, directly or indirectly, (A) amend, modify, alter or change the terms of such loans, advances or guarantees guarantee or any agreement, document or instrument related relating to the Indebtedness subject to such guarantee, except, that, as to such guarantee and such other agreements, documents and instruments, QS may, and may permit Bing Blanking L.L.C. to, after prior written notice to Agent, amend, modify, alter or change the terms thereof so as to extend the maturity of the Indebtedness subject thereto, or defer the timing of any payments in respect thereof, or to forgive or cancel any portion of such Indebtedness (B) as other than pursuant to such guaranteespayments thereof), redeem, retire, defease, purchase or to reduce the interest rate or any fees in connection therewith or otherwise acquire such guarantee limit or set aside reduce the liability of QS or otherwise deposit or invest any sums for such purpose Bing Blanking, L.L.C. pursuant thereto, and (ii) Borrower QS shall, and shall cause Bing Blanking L.L.C. to, furnish to Agent all notices, notices or demands or other materials in connection with such loans, advances guarantee or guarantees the Indebtedness subject to such guarantee either received by Borrower QS or Bing Blanking L.L.C. or on its or their behalf, promptly after the receipt thereof, or sent by Borrower QS or Bing Blanking L.L.C. or on its or their behalf, concurrently with the sending thereof, as the case may be.be and (iii) the liability of QS pursuant to such guarantee does not and shall not exceed $2,746,000 at any time;
(k) the unsecured obligations of RII in favor of Michigan National Bank to maintain Delaco Processing, L.L.C. in a solvent position by funding losses incurred by Delaco Processing and causing Delaco Processing L.L.C to maintain a positive net worth as set forth in the Capital Contribution Agreement, dated September, 1998, by Delaco Steel Corporation and RII in favor of Michigan National Bank in connection with the loans by Michigan National Bank pursuant to the Business Loan Agreement, dated September 15, 1998, between Delaco Processing, L.L.C. and Michigan National Bank, provided, that, as to such obligations, (i) RII shall not, and shall not permit Delaco Processing L.L.C. to, directly or indirectly, amend, modify, alter or change the terms of such Capital Contribution Agreement or any agreement, document or instrument relating to the Indebtedness subject to such agreement, except, that, as to such agreement and the other agreements, documents and instruments, RII may, and may permit Delaco Processing L.L.C. to, after prior written notice to Agent, amend, modify, alter or change the terms thereof so as to extend the maturity of the Indebtedness subject thereto, 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 otherwise limit or reduce the liability of RII or Delaco Processing L.L.C. pursuant thereto, (ii) RII shall, and shall cause Delaco Processing L.L.C. to, furnish to Agent all notices or demands in connection with such obligations or the Indebtedness subject to such obligations either received by RII or Delaco Processing L.L.C. or on its or their behalf, promptly after the receipt thereof, or sent by RII or Delaco Processing L.L.C. or on its or their behalf, concurrently with the sending thereof, as the case may be and (iii) the liability of RII pursuant to such Capital Contribution Agreement does not and shall not exceed $5,899,000 at any time;
Appears in 1 contract
Loans, Investments, Guarantees, Etc. Each US Borrower shall not, directly or indirectly, make any loans or advance money or property to any person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the 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: (i) short-term direct obligations of the United States US Government, (ii) negotiable certificates of deposit issued by any bank satisfactory to AgentLender, payable to the order of the a US Borrower or to bearer and delivered to AgentLender, and (iii) commercial paper rated A1 or P1; provided, that, -------- ---- as to any of the foregoing, unless waived in writing by AgentLender, each US Borrower shall take such actions as are deemed necessary by US Collateral Agent to perfect the security interest of Agent, for the ratable benefit of Lender, US Collateral Agent in such investments;
; (c) the existing investment of Borrower in the Capital Stock of Children's Products, Inc.;
(d) capital contributions, loans or other payments by Borrower to any wholly-owned Subsidiary of Borrower formed after the date hereof in accordance with Section 9.7 or loans by Borrower to employees of Borrower after the date hereof, provided, that, 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 or for the formation or acquisition of all such Subsidiaries, together with all loans by Borrower to employees of Borrower, and amounts paid in connection with any merger or consolidation permitted under Section 10.7 hereof, exceed $1,500,000, (ii) at the time of any such 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, (iii) in the case of any loans by Borrower to a Subsidiary or employee, the indebtedness arising from such loans shall not be evidenced by any promissory note or other instrument, 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 50 the case of any loan by Borrower to employees of Borrower, such loans shall be for reasonable and necessary work-related travel or other ordinary business expenses to be incurred by such employees in connection with their work for Borrower or for the relocation of such employees in connection with their work for Borrower, or for any other purpose related in any manner to their employment by Borrower, and (v) 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 $2,500,000, 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 $1,000,000, and
(e) the existing loans, advances and guarantees by Borrower outstanding as of the date hereof as set forth on Schedule 10.10 9.10 hereto; provided, that, as to such loans, advances and guarantees, (i) each US Borrower 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 the obligations arising pursuant to such guarantee guarantees, or set aside or otherwise deposit or invest any sums for such purpose purpose, and (ii) each US Borrower shall furnish to Agent Lender all notices, notices or demands or other materials in connection with such loans, advances or guarantees or other indebtedness subject to such guarantees either received by Borrower it or on its behalf, promptly after the receipt thereof, or sent by Borrower it or on its behalf, concurrently with the sending thereof, as the case may be; and (d) loans to SMTC Corporation and/or HTM not to exceed the amount, and to the extent such amount has not already been paid as dividends to SMTC Corporation and/or HTM as provided, and for the purposes set forth, in Section 9.11, required in any fiscal year of SMTC Corporation to allow (i) HTM to make payments under the Amended Subordinated Credit Facility Agreement to the extent permitted pursuant to this Agreement and the Intercreditor Agreement, (ii) SMTC Corporation to pay its consolidated income taxes payable and (iii) SMTC Corporation and HTM to pay their respective administrative costs (being the legal and audit fees and insurance costs payable by SMTC Corporation on behalf of its Subsidiaries) consistent with past practice (as disclosed in writing to Lender prior to the date hereof) up to US$2,500,000 in the aggregate per fiscal year of SMTC Corporation.
Appears in 1 contract
Samples: Loan Agreement (SMTC Corp)
Loans, Investments, Guarantees, Etc. Each Borrower shall not, and shall not permit any Subsidiary to, directly or indirectly, make any loans or advance money or property to any Person, or invest in (by capital contribution, dividend or otherwise) or purchase or own a futures contract or otherwise become liable for the purchase and sale of any currency, commodities or raw materials at a future date in the nature of a futures contract (which for this purpose shall not include the customary agreements entered into by Doe Run with its customers for the sale of Inventory in the ordinary course of business consistent with its current practices as of the date hereof), 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 agree or commit 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) short-term direct obligations of the United States Governmentin cash or Cash Equivalents so long as no Loans are outstanding, (ii) negotiable certificates of deposit issued by any bank satisfactory to Agent, payable to the order of the Borrower or to bearer which shall be pledged and delivered to Agent, and (iii) commercial paper rated A1 or P1; provided, that, -------- ---- as to any of the foregoing, unless waived in writing by Agent, Borrower shall take such actions as are deemed necessary by Agent to perfect the security interest of Agent, for the ratable benefit of Lender upon Lender, in such investments's request;
(c) the existing investment of capital contributions or other investments by each Borrower in, or loans by each Borrower to, or any other payments by such Borrower in connection with the Capital Stock acquisition or formation of, its Wholly-Owned Subsidiaries, provided, that, (i) as of Children's Productsthe date of such capital contribution or other investments, Inc.;
loans or payments, as the case may be, 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, (dii) in no event shall the total amount of any capital contributions, investments, loans or other payments by Borrower Borrowers to or in connection with any such Subsidiaries outstanding at any time exceed $1,000,000 in the aggregate with respect to all of such Subsidiaries which have not executed and delivered a security agreement to Lender as described in Section 6.2(b)(ii) or $5,000,000 in the aggregate with respect to all such Subsidiaries (including both Subsidiaries which have executed and delivered a security agreement to Lender as described in Section 6.2(b)(ii) and Subsidiaries which have not executed and delivered a security agreement to Lender as described in Section 6.2(b)(ii)), in each case calculated without giving effect to any whollywrite-owned ups, write-downs or write-offs thereof, but net of dividends or other distributions received by Borrowers from, or any repayment of any loans or advances made by, the respective Wholly-Owned Subsidiary after the making of Borrower formed such capital contribution, investment or loan), (iii) the proceeds of accounts receivable and sales of inventory and goods of such Subsidiary shall be paid to the Blocked Accounts, and (iv) to the extent required under Section 6.2 hereof, such Subsidiary has executed and delivered to Lender such agreements, documents and instruments as are described in Section 6.2 hereof;
(d) loans by Doe Run after the date hereof in accordance with Section 9.7 to Doe Run Cayman or loans by Borrower to employees of Borrower after the date hereofits Subsidiaries, provided, that, 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 or for the formation or acquisition of all such Subsidiaries, together with all loans by Borrower to employees of Borrower, and amounts paid in connection with any merger or consolidation permitted under Section 10.7 hereof, exceed $1,500,00010,000,000 in the aggregate outstanding at any time, (ii) at as of the time date of any each such capital contributionloan, loan or other payment and after giving effect thereto, no Event of Default Default, or act, condition or event which with notice and or passage of time or both would constitute an Event of Default, Default shall exist or have occurred, (iii) in the case of any loans by Borrower to a Subsidiary or employee, the indebtedness arising from such loans shall not be evidenced by any promissory note or other instrument, 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 50 the case of any loan by Borrower to employees of Borrower, such loans shall be for reasonable and necessary work-related travel or other ordinary business expenses to be incurred by such employees in connection with their work for Borrower or for the relocation of such employees in connection with their work for Borrower, or for any other purpose related in any manner to their employment by Borrower, and (v) as of the date of any each such capital contributionloan, loan or other paymentand after giving effect thereto, the daily average of the Excess Availability for the immediately preceding thirty (30) consecutive day period shall be not less than $2,500,00010,000,000, 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 $1,000,00010,000,000, and(iv) Lender shall have received not less than three (3) Business Days prior written notice of the intention of Doe Run to make any such loan, (v) the proceeds of such loan shall only be used by Doe Run Cayman or its Subsidiaries for working capital in the ordinary course of business, (vi) Doe Run shall not, directly or indirectly, amend, modify, alter or change the terms of such loan or any agreement, documents or instrument related thereto, and (vii) Doe Run shall furnish to Lender all notices, demands or other materials in connection with such loans either received by Doe Run or on its behalf, promptly after the receipt thereof, or sent by Doe Run or on its behalf, concurrently with the sending thereof, as the case may be;
(e) capital contributions or other investments by Doe Run, in, or loans by Doe Run to, Doe Run Exploration S.A. (Proprietary) Ltd. (South Africa) after the date hereof, provided, that, (i) in no event shall the total amount of all such capital contributions, investments and loans exceed $3,000,000 in any fiscal year of Doe Run, (ii) as of the date of each such capital contribution, other investment in or loan to, Doe Run Exploration S.A. (Proprietary) Ltd. (South Africa), 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 (iii) as of the date of each such capital contribution, other investment or loan, and after giving effect thereto, the daily average of the Excess Availability for the immediately preceding thirty (30) consecutive day period shall be not less than $10,000,000, and as of the date of such loan and after giving effect thereto, Excess Availability shall be not less than $10,000,000;
(f) guarantees by any Wholly-Owned Subsidiary of each Borrower of the Obligations in favor of Lender;
(g) loans by Subsidiaries of each Borrower to such Borrower or other Wholly-Owned Subsidiaries of such Borrower after the date hereof to the extent the Indebtedness of such Borrower to such Subsidiaries or of such Subsidiaries to other Subsidiaries as a result of such loans is permitted under Section 6.3 hereof;
(h) loans, payments, dividends, investments or distributions of any kind by Borrower to DRA and Renco Group or by DRA to Renco Group to the extent permitted under Section 6.7 hereof;
(i) unsecured contingent obligations of each Borrower or any of its Wholly-Owned Subsidiaries evidenced by guarantees, performance bonds and surety bonds incurred in -52- the ordinary course of business of such Borrower or such Wholly-Owned Subsidiary to the extent constituting Indebtedness permitted under Section 6.3;
(j) guarantees by each Borrower or any Wholly-Owned Subsidiary of such Borrower of Indebtedness of such Borrower or Subsidiary permitted under Section 6.3 hereof and the guarantee by Doe Run of the Indebtedness of Doe Run Peru arising pursuant to the purchase by Doe Run Peru of the helicopter as described on Schedule 6.5 hereto;
(k) loans and advances to employees, officers and directors of Borrowers in an aggregate principal amount not to exceed $500,000 at any time outstanding;
(l) purchases of raw materials by a Borrower or its Subsidiaries in the ordinary course of business and consistent with current practices as of the date hereof (including pursuant to forward purchase agreements so long as reasonably related to such Borrower's or its respective Subsidiary's anticipated needs for such raw material in its production process, and so long as such forward purchase agreements are not speculative in nature and do not extend for a period longer than twelve (12) months after the date thereof);
(m) investments or other Indebtedness which may be deemed to exist as a result of Interest Rate Protection Obligations or Hedging Agreements, to the extent Indebtedness in connection with such arrangements is permitted under Section 6.3 hereof;
(n) the guarantee by Fabricated Products of the Indebtedness of Doe Run evidenced by the Senior Notes to the extent such Indebtedness of Doe Run is permitted under Section 6.3 hereof;
(o) the other existing loans, advances and guarantees by each Borrower or its Subsidiaries outstanding as of the date hereof as set forth on Schedule 10.10 hereto6.5 hereto not otherwise permitted above; provided, that, as to such loans, advances and guarantees, (i) such Borrower or its Subsidiary 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 and (ii) such Borrower and Subsidiary shall furnish to Agent Lender all notices, demands or other materials in connection with such loans, advances or guarantees either received by Borrower or Subsidiary or on its behalf, promptly after the receipt thereof, or sent by such Borrower or Subsidiary or on its behalf, concurrently with the sending thereof, as the case may be.
Appears in 1 contract
Loans, Investments, Guarantees, Etc. Borrower shall not, directly or indirectly, make any loans or advance money or property to any person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the 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;
; and (b) investments in: (i) short-term direct obligations of the United States Canadian Government, (ii) negotiable certificates of deposit issued by any bank satisfactory to AgentLender, payable to the order of the Borrower or to bearer and delivered to AgentLender, and (iii) commercial paper rated A1 or P1; provided, that, -------- ---- as to any of the foregoing, unless waived in writing by AgentLender, Borrower shall take such actions as are deemed necessary by Agent Lender to perfect the security interest of Agent, for the ratable benefit of Lender, Lender in such investments;
, (c) the existing investment of Borrower advances made to employees in the Capital Stock ordinary course of Children's Products, Inc.;
business on account of expenses not yet incurred and (d) capital contributions, loans or other payments by Borrower to any wholly-owned Subsidiary of Borrower formed after the date hereof in accordance with Section 9.7 or loans by Borrower to employees of Borrower after the date hereof, provided, that, 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 or for the formation or acquisition of all such Subsidiaries, together with all loans by Borrower to employees of Borrower, and amounts paid in connection with any merger or consolidation permitted under Section 10.7 hereof, exceed $1,500,000, (ii) at the time of any such 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, (iii) in the case of any loans by Borrower to a Subsidiary or employee, the indebtedness arising from such loans shall not be evidenced by any promissory note or other instrument, 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 50 the case of any loan by Borrower to employees of Borrower, such loans shall be for reasonable and necessary work-related travel or other ordinary business expenses to be incurred by such employees in connection with their work for Borrower or for the relocation of such employees in connection with their work for Borrower, or for any other purpose related in any manner to their employment by Borrower, and (v) 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 $2,500,000, 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 $1,000,000, and
(e) the existing loans, advances and guarantees by Borrower outstanding as of the date hereof as set forth on Schedule 10.10 9.10 hereto; provided, that, as to such loans, advances and guarantees, (i) Borrower 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 the obligations arising pursuant to such guarantee guarantees, or set aside or otherwise deposit or invest any sums for such purpose purpose, and (ii) Borrower shall furnish to Agent Lender all notices, notices or demands or other materials in connection with such loans, advances or guarantees or other indebtedness subject to such guarantees either received by Borrower or on its behalf, promptly after the receipt thereof, or sent by Borrower or on its behalf, concurrently with the sending thereof, as the case may be.
Appears in 1 contract
Loans, Investments, Guarantees, Etc. Borrowers shall not, and shall not permit any of their respective Subsidiaries, and Hanover shall not permit any of its Subsidiaries, other than Non-Guarantor Subsidiaries, to, directly or indirectly, make any loans or advance money or property to any Person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the stock or Indebtedness or all or a substantial part of the assets or properties of any Person, or guarantee, assume, endorse, or otherwise become responsible for (directly or indirectly) or pay the Indebtedness, performance, obligations, stock or dividends of any person or agree to do any of the foregoing, except:
(a) The Guarantees of the Obligations of Borrowers in favor of Lender;
(b) Provided no Event of Default or Incipient Default has occurred and is continuing, short-term loans or advances of money by one Borrower to another Borrower in the ordinary course of business, or by a Borrower to any other Subsidiary of Hanover, other than to a Non-Guarantor Subsidiary, in the ordinary course of business; and
(c) the endorsement of instruments for collection or deposit in the ordinary course of business;
(bd) investments in: in the following instruments, which shall be pledged and (unless delivered to Congress under the Senior Credit Facility) delivered to Lender upon Lender's request, (i) short-term direct marketable obligations of issued or guaranteed by the United States Governmentof America or an instrumentality or agency thereof, maturing not more than one (1) year after the date of acquisition thereof, (ii) negotiable certificates of deposit or other obligations maturing not more than one (1) year after the date of acquisition thereof issued by any bank satisfactory to Agentor trust company organized under the laws of and located in the United States of America or any State thereof and having capital, payable to the order surplus and undivided profits of the Borrower or to bearer and delivered to Agentat least One Hundred Million Dollars ($100,000,000), and (iii) open market commercial paper rated A1 with a maturity not in excess of two hundred seventy (270) days from the date of acquisition thereof which have the highest credit rating by either Standard & Poor's Corporation or P1; provided, that, -------- ---- as to any of the foregoing, unless waived in writing by Agent, Borrower shall take such actions as are deemed necessary by Agent to perfect the security interest of Agent, for the ratable benefit of Lender, in such investments;
(c) the existing investment of Borrower in the Capital Stock of Children's ProductsMxxxx'x Investors Service, Inc.;
(de) capital contributionsguarantees by Borrowers and Guarantors of the repayment of obligations owing under the Senior Credit Facility; and
(f) guarantees, loans or other payments by Borrower to any wholly-owned Subsidiary existing as of Borrower formed after the date hereof in accordance with Section 9.7 or loans by Borrower to employees of Borrower after the date hereof, provided, that, each of the following conditions is satisfied as -------- ---- determined leases (including equipment leases) of Borrowers and/or Guarantors by Agent: (i) in no event shall the total amount of capital contributions, loans or other amounts paid by Borrower to or for the formation or acquisition of all such Subsidiaries, together with all loans by Borrower to employees of Borrower, and amounts paid in connection with any merger or consolidation permitted under Section 10.7 hereof, exceed $1,500,000, (ii) at the time of any such 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, (iii) in the case of any loans by Borrower to a Subsidiary or employee, the indebtedness arising from such loans shall not be evidenced by any promissory note or other instrument, 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 50 the case of any loan by Borrower to employees of Borrower, such loans shall be for reasonable and necessary work-related travel or other ordinary business expenses to be incurred by such employees in connection with their work for Borrower or for the relocation of such employees in connection with their work for Borrower, or for any other purpose related in any manner to their employment by Borrower, and (v) 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 $2,500,000, 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 $1,000,000, and
(e) the existing loans, advances and guarantees by Borrower outstanding as of the date hereof as set forth on Schedule 10.10 hereto; provided, that, as to such loans, advances and guarantees, (i) Borrower 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 and (ii) Borrower shall furnish to Agent all notices, demands or other materials in connection with such loans, advances or guarantees either received by Borrower or on its behalf, promptly after the receipt thereof, or sent by Borrower or on its behalf, concurrently with the sending thereof, as the case may beBorrowers and/or Guarantors.
Appears in 1 contract
Loans, Investments, Guarantees, Etc. Neither Borrower shall, directly or indirectly, make any loans or advance money or property to any person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the 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: (i) short-term direct obligations of the United States Government, (ii) negotiable certificates of deposit issued by any bank satisfactory to AgentLender, payable to the order of the Borrower any of Borrowers or to bearer and and, upon Lender's request, delivered to AgentLender, and (iii) commercial paper rated A1 or P1; provided, that, -------- ---- as to any of the foregoing, unless waived in writing by AgentLender, Borrower shall Borrowers shall, upon Lender's request, take such actions as are deemed necessary by Agent Lender to perfect the security interest of Agent, for the ratable benefit of Lender, Lender in such investments;
; (c) the existing investment of Borrower in the Capital Stock of Children's Products, Inc.;
(d) capital contributions, loans or other payments and advances by Borrower to any wholly-owned Subsidiary of Borrower formed after the date hereof in accordance with Section 9.7 or loans by Borrower Borrowers to employees of Borrower after Borrowers for relocation and hardship situations in a manner consistent with the date hereofmost recent past practices of Borrowers, provided, that, each of the following conditions is satisfied as -------- ---- determined by Agent: (i) in no event shall the total amount of capital contributions, such loans or other amounts paid and advances outstanding at any one time exceed $500,000; (d) advances by Borrower Borrowers to or lessors of Retail Stores for the formation or acquisition construction and/or renovation of all such SubsidiariesRetail Store locations in a manner consistent with the most recent past practices of Borrowers, together with all loans by Borrower to employees of Borrowerprovided, and amounts paid in connection with any merger or consolidation permitted under Section 10.7 hereof, exceed $1,500,000that, (iii) at the time of any such capital contribution, loan or other payment and after giving effect thereto, no Event of Default or act, condition or event which with notice and or passage of time or both would constitute an Event of Default, Default shall exist or have occurredoccurred and be continuing, (ii) in no event shall the total amount of such advances outstanding at any one time exceed $250,000 and (iii) in the case of any loans by Borrower to a Subsidiary or employee, the indebtedness arising from such loans Lender shall not be evidenced by any promissory note or other instrument, 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 50 the case of any loan by Borrower to employees of Borrower, such loans shall be for reasonable and necessary work-related travel or other ordinary business expenses to be incurred by such employees in connection with their work for Borrower or for the relocation of such employees in connection with their work for Borrower, or for any other purpose related in any manner to their employment by Borrower, and (v) as of the date have received prior written notice 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 $2,500,000, and as of advance made after the date hereof in excess of $50,000; (e) advances by Borrowers to vendors of Inventory as deposits against purchase orders of Inventory in a manner consistent with the most recent past practices of Borrowers, provided, that, (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 be continuing, (ii) in no event shall the total amount of such advances outstanding at any one time exceed $1,000,000 and (iii) Lender shall have received prior written notice of any such capital contribution, loan or advance made after the date hereof in excess of $100,000; (f) advances by Borrowers to utility providers as security deposits in a manner consistent with the most recent past practices of Borrowers; (g) loans and advances by one Borrower to the other payment Borrower constituting permitted indebtedness of the recipient Borrower under Section 9.9 hereof; and after giving effect thereto, the Excess Availability shall be not less than $1,000,000, and
(eh) the existing loans, advances and guarantees by Borrower Borrowers outstanding as of the date hereof as set forth on Schedule 10.10 hereto9.10 hereto and any guarantees by One Price of the Obligations of One Price PR to lessors, utility providers, and construction suppliers with respect to Retail Stores operated by One Price PR; provided, that, as to such loans, advances and guarantees, (i) Borrower Borrowers 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 and (ii) Borrower Borrowers shall furnish to Agent Lender all notices, demands or other materials in connection with such loans, advances or guarantees either received by Borrower Borrowers or on its their behalf, promptly after the receipt thereof, or sent by Borrower Borrowers or on its their behalf, concurrently with the sending thereof, as the case may be.
Appears in 1 contract
Samples: Loan and Security Agreement (One Price Clothing Stores Inc)
Loans, Investments, Guarantees, Etc. Borrower shall not, directly or indirectly, make any loans or advance money or property to any person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the 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: (i) short-term direct obligations of the United States GovernmentGovernment or fully guaranteed or insured by the United States Government or any agency thereof, (ii) negotiable certificates of deposit issued by any bank satisfactory to AgentLender, payable to the order of the Borrower or to bearer and delivered to AgentLender, and (iii) commercial paper rated A1 or P1, and (iv) money market funds that invest exclusively in one or more of the foregoing types of permitted investments; provided, that, -------- ---- as to any of the foregoing, unless waived in writing by AgentLender, Borrower shall take such actions as are deemed necessary by Agent Lender to perfect the security interest of Agent, for the ratable benefit of Lender, Lender in such investments;
, (c) the existing investment loans and advances to employees of Borrower in the Capital Stock ordinary course of Children's Productsbusiness, Inc.;
consistent with past practices, in an aggregate amount for all such loans and advances not to exceed $50,000 at any one time outstanding, (d) capital contributions, loans or other payments by Borrower to any wholly-owned Subsidiary conversions of Borrower formed after shares of Class B convertible common stock outstanding on the date hereof into shares of Borrower's common stock in accordance with Section 9.7 or loans by Borrower to employees the terms of Borrower after such Class B convertible common stock as in effect on the date hereof, provided, that, 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 or for the formation or acquisition of all such Subsidiaries, together with all loans by Borrower to employees of Borrower, ; and amounts paid in connection with any merger or consolidation permitted under Section 10.7 hereof, exceed $1,500,000, (ii) at the time of any such 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, (iii) in the case of any loans by Borrower to a Subsidiary or employee, the indebtedness arising from such loans shall not be evidenced by any promissory note or other instrument, 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 50 the case of any loan by Borrower to employees of Borrower, such loans shall be for reasonable and necessary work-related travel or other ordinary business expenses to be incurred by such employees in connection with their work for Borrower or for the relocation of such employees in connection with their work for Borrower, or for any other purpose related in any manner to their employment by Borrower, and (v) 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 $2,500,000, 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 $1,000,000, and
(e) the existing loans, advances and guarantees by Borrower outstanding as of the date hereof as set forth on Schedule 10.10 9.10 hereto; provided, that, as to such loans, advances and guarantees, (i) Borrower 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 and (ii) Borrower shall furnish to Agent Lender all notices, demands or other materials in connection with such loans, advances or guarantees either received by Borrower or on its behalf, promptly after the receipt thereof, or sent by 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 any loans or advance money or property to any Person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the Capital Stock or Indebtedness or all or a substantial part of the assets or property of any person, or guarantee, assume, endorse, or otherwise become responsible for (directly or indirectly) the Indebtedness, performance, obligations or dividends of any 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) short-term direct obligations of the United States Governmentin cash or Cash Equivalents, (ii) negotiable certificates of deposit issued by any bank satisfactory to Agent, payable to the order of the Borrower or to bearer and delivered to Agent, and (iii) commercial paper rated A1 or P1; provided, that, -------- ---- as to any of the foregoing, unless waived in writing by AgentLender, Borrower each Borrower, Guarantor or Subsidiary, as the case may be, shall take such actions as are deemed necessary by Agent Lender to perfect the security interest of AgentLender in such investments, for except that, each Borrower, Guarantor or Subsidiary, as the ratable benefit case may be, may make investments of Lenderthe cash proceeds of any sale of its property (to the extent such disposition is permitted herein) other than Collateral, without taking actions to perfect the security interests of Lender in such investments;
(c) the existing investment of Borrower in the Capital Stock of Children's Products, Inc.;
(d) capital contributions, loans or other payments by a Borrower to any wholly-owned Subsidiary of Borrower formed after the date hereof in accordance with Section 9.7 or loans by Borrower to employees of other Borrower after the date 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 following outstanding amount of such loans as of the last day of the immediately preceding month and indicating any loans made and payments received during the immediately preceding month, (ii) the Indebtedness arising pursuant to any such loan shall not be evidenced by a promissory note or other instrument, unless the single original of such note or other instrument is delivered to 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 any such loan and after giving effect thereto, the Borrower making such loan shall be Solvent; and (iv) as of the date of any such loan and after giving effect thereto, no 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;
(d) any guaranties by any Borrower or Guarantor or other assumptions or endorsements of Indebtedness constituting permitted Indebtedness under Section 9.9 hereof;
(e) loans by a Guarantor (or a Subsidiary of a Guarantor or a Borrower other than a Borrower) to a Borrower after the date hereof, provided, that, as to any such loan (i) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Lender to receive the prior final 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 Guarantor or Subsidiary (as the case may be) and such Borrower, (iii) such Borrower shall not, directly or indirectly make, or be required to make, any payments in respect of such Indebtedness, (iv) each month Borrowers shall provide to 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, and (v) the Indebtedness arising pursuant to any such loan shall not be evidenced by a promissory note or other instrument, unless the single original of such note or other instrument is satisfied delivered to Lender to hold as -------- ---- determined part of the Collateral, with such endorsement and/or assignment by Agentthe payee of such note or other instrument as Lender may require;
(f) loans by a Borrower to a Guarantor; provided, that, as to any such loan , (i) each month 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, (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, and (iii) as of the date of the making of such loan and after giving effect thereto, the Borrower making such loan shall be Solvent;
(g) the formation or acquisition by a Borrower or Guarantor after the date hereof of one or more Subsidiaries incorporated or organized under the laws of any State of the United States of America; provided, that: (i) such Borrower or Guarantor (as the case may be) shall cause any such Subsidiary to execute and deliver to Lender, in no event form and substance satisfactory to Lender, (A) an absolute and unconditional guarantee of payment of the Obligations, (B) a security agreement granting to Lender a first security interest and lien (except as otherwise consented to in writing by Lender) upon property of any such Subsidiary constituting the same items or types of property set forth in Section 5 hereof, (C) related UCC financing statements, and (D) such other agreements, documents and instruments as 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) the Subsidiary formed or acquired shall be engaged in a business related, ancillary or complimentary to the total amount businesses of capital contributionsBorrowers as conducted on the date hereof, (iii) in the case of loans and advances, the original of any promissory note or other amounts paid by Borrower instrument evidencing the Indebtedness arising pursuant to such loans and advances shall be delivered, or for caused to be delivered, to Lender, at Lender's option, together with an appropriate endorsement and with full recourse to the payee thereof, and (iv) Lender shall have received (A) not less than ten (10) Business Days' prior written notice of the formation or acquisition of all any such Subsidiaries, together Subsidiary and such information with all loans by Borrower to employees of Borrowerrespect thereto as Lender may request, and amounts paid in connection with any merger or consolidation permitted under Section 10.7 hereof(B) true, exceed $1,500,000correct and complete copies of all agreements, documents and instruments relating thereto and (iiv) at as of the time date of any such loan, advance, capital contribution, loan contribution or other payment and after giving effect theretoinvestment or payment, no Event of Default or act, condition or event which with notice and or passage of time or both would constitute an Event of Default, Default shall exist or have occurredoccurred and be continuing;
(h) the existing equity investments of Borrowers, Guarantors and their Subsidiaries as of the date hereof in their respective Subsidiaries, provided, that, Borrowers and Guarantors shall have no further obligations or liabilities to make any capital contributions or other additional investments or other payments to or in or for the benefit of any of such Subsidiaries;
(iiii) stock or obligations issued to any Borrower, Guarantor or any of their respective Subsidiaries by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to any Borrower or Subsidiary in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person; provided, that, prior to an Event of Default, if the amount or value thereof is greater than $100,000, or the amount or value of all of such stock and instruments in the aggregate is greater than $250,000, and after an Event of Default, regardless of the amount or value thereof, the original of any such stock or instrument evidencing such obligations to a Borrower, Guarantor or any Subsidiary shall be promptly delivered to Lender, upon Lender's request, together with such stock power, assignment or endorsement by such Borrower or as Lender may request;
(j) obligations of account debtors to any Borrower, Guarantor or Subsidiaries arising from Accounts which are past due provided, that, such Borrower, Guarantor or Subsidiary, as the case may be, uses its best efforts to evidence such obligations, to the extent such obligations exceed $100,000, with a promissory note made by such account debtor payable to such Borrower or Subsidiary, as the case may be; provided, that, prior to an Event of Default, if the amount of such note is greater than $100,000, or the amount of all of such notes in the aggregate is greater than $250,000, and after an Event of Default, regardless of the amount thereof, promptly upon the receipt of the original of any loans such promissory note by a Borrower to a Borrower, Guarantor or any Subsidiary such promissory note shall be endorsed to the order of Lender by such Borrower to a Borrower, Guarantor or employee, the indebtedness arising from such any Subsidiary and promptly delivered to Lender as so endorsed;
(k) loans shall not be evidenced or advances by any promissory note Borrower, Guarantor or other instrumentany of their respective Subsidiaries to any of its employees, unless after the original date hereof, not to exceed the principal amount of $1,000,000 in the aggregate at any time outstanding in the ordinary course of such note Borrower's, Guarantor's 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 50 the case of any loan by Borrower to employees of Borrower, such loans shall be Subsidiary's business for reasonable and necessary work-related travel or and other ordinary business expenses to be incurred by such employees in connection with their work for Borrower or for the relocation of employment with such employees in connection with their work for Borrower, Guarantor or for Subsidiary, as the case may be;
(l) any other purpose related in investments of any manner to their employment by 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 (v) as of other chemical products used or produced in the date business of any Borrower; provided, that, such capital contribution, loan arrangements are with banks or other payment, the daily average financial institutions that have combined capital and surplus and undivided profits of the Excess Availability for the immediately preceding thirty (30) consecutive day period shall be not less than $2,500,000, 250,000,000 and as of the date of any such capital contribution, loan or other payment are not for speculative purposes and after giving effect thereto, the Excess Availability shall be not less than $1,000,000, andare unsecured;
(em) loans by any Subsidiary of Pep Boys (other than a Borrower or Guarantor) to any other Subsidiary of Pep Boys (other than a Borrower or Guarantor);
(n) the existing loans, advances and guarantees by Borrower outstanding as of the date hereof as set forth on Schedule 10.10 9.10 hereto; , provided, that, as to such loans, advances and guarantees, (i) Borrower Borrowers, Guarantors, or their respective Subsidiaries, as the case may be, shall -------- ---- not, directly or indirectly, (A) amend, modify, alter or change in any material respect the terms of such loans, advances or guarantees or any agreement, document or instrument related thereto, except, that, such Borrower, Guarantor or Subsidiary, as the case may be, after prior written notice to Lender, amend, modify, alter or change the terms thereof so as to extend the maturity thereof or defer the timing of any payments in respect thereof, or to forgive or cancel a portion of such indebtedness (other than pursuant to payments thereof), or to release any liens or security interests in any assets of Borrower which secure such indebtedness (if any), or to reduce the rate or any fees in connection therewith, or to make any covenants contained therein less restrictive or burdensome as to Borrower or otherwise more favorable to Borrower, Guarantor or Subsidiary, as the case may be, (as determined in good faith by Lender), 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 Guarantors shall furnish to Agent Lender all notices, notices or demands or other materials in connection with such loans, advances or guarantees either received by Borrower a Borrower, Guarantor or Subsidiary on its behalf, promptly after the receipt thereof, or sent by Borrower a Borrower, Guarantor or Subsidiary on its behalf, concurrently with the sending thereof, as the case may be;
(o) investments (including, without limitation, any loan, advance, capital contribution or other investment or payment) in joint ventures or other Persons (each a "Business Enterprise") by Pep Boys for the purpose of development, creation and operation of an internet business; provided, that: (i) each such Business Enterprise is entered into with a Person who is not an Affiliate, (ii) the Business Enterprise shall be engaged in a business related, ancillary or complimentary to the businesses of Borrowers as conducted on the date hereof, (iii) Lender shall have received (A) (1) in the event the initial investment (whether characterized by loans, capital contributions, letters of credit or otherwise) in the Business Enterprise is not in excess of $5,000,000, not more than two (2) Business Days' written notice after the date of such investment, and such other information with respect thereto as Lender may reasonably request, or (2) in the event such initial investment is to be equal to or greater than $5,000,000, not less than ten (10) Business Days prior written notice of such investment in such Business Enterprise, and such other information with respect thereto as Lender may reasonably request and (B) true, correct and complete copies of all agreements, documents and instruments relating thereto, (iv) in the case of loans and advances, the original of any promissory note or other instrument evidencing the Indebtedness arising pursuant to such loans and advances shall be delivered, or caused to be delivered, to Lender, at Lender's option, together with an appropriate endorsement and with full recourse to the payee thereof, (v) so long as a Cash Dominion Event is continuing, in no event shall the total amount of investments made by Pep Boys in all such Business Enterprises be in excess of $15,000,000 in each fiscal year, (vi) the total amount of all such investments in such Business Enterprises shall not exceed $50,000,000 in the aggregate at any time, and (vii) Lender shall receive a monthly report in form and substance satisfactory to Lender of the amount of such investment and such other information with respect thereto as Lender may reasonably request and (viii) as of the date of any such loan, advance, capital contribution or other investment or payment, 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;
(p) the existing loans by Pep Boys to the Flexi-Trust, pursuant to the terms and conditions of the Flexi-Trust Agreement in effect on the date hereof; and
(q) repurchases and redemptions of Capital Stock permitted pursuant to Section 9.11(c).
Appears in 1 contract
Samples: Loan and Security Agreement (Pep Boys Manny Moe & Jack)
Loans, Investments, Guarantees, Etc. Borrower shall not, and shall not permit any Subsidiary to, directly or indirectly, make any loans or advance money or property to any person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the Capital Stock or Indebtedness or all or a substantial part of the assets or property of any person, or form or acquire any Subsidiaries, or 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: (i) short-term direct obligations of the United States Government, (ii) negotiable certificates of deposit issued by any bank satisfactory to Agent, payable to the order of the Borrower in cash or to bearer and delivered to Agent, and (iii) commercial paper rated A1 or P1; provided, that, -------- ---- as to any of the foregoing, unless waived in writing by Agent, Borrower shall take such actions as are deemed necessary by Agent to perfect the security interest of Agent, for the ratable benefit of Lender, in such investmentsCash Equivalents;
(c) loans, capital contributions or other equity investments involving the existing investment purchase, directly or indirectly, or involving the ownership or control, directly or indirectly, of Borrower in fifty percent (50%) or less of the Capital Stock of Children's Productsany such Person, Inc.;
(d) capital contributions, loans in each case in cash or other payments immediately available funds by Borrower to any wholly-owned Subsidiary of Borrower formed after the date hereof to or in accordance with Section 9.7 any Person, PROVIDED, THAT, as to any such loan, capital contributions or loans by Borrower to employees of Borrower after the date hereof, provided, thatother equity investment, each of the following conditions is satisfied as -------- ---- determined by Agentsatisfied: (i) as of the date of any such loan, capital contribution or other equity investment and after giving effect thereto, Borrower shall be in compliance with the financial covenants set forth in Schedule 9.9(c) hereof based on the most recent financial statements or Borrower received by Lender in accordance with Section 9.6 hereof, (ii) the Person receiving such loan, capital contribution or other investment shall be engaged in any business which is reasonably related, ancillary or complementary to the business of Borrower as conducted on the date hereof and (iii) as of the date of such loan, capital contribution or other 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, shall exist or have occurred and be continuing;
(d) the formation or acquisition of any Subsidiary or the purchase of more than fifty percent (50%) of the Capital Stock of any Person, or all or a substantial part of the assets or property of any Person or the merger or consolidation of Borrower with any Person, PROVIDED, THAT, as to any such transaction, each of the following conditions is satisfied: (i) as of the date of any such transaction and after giving effect thereto, Borrower shall be in compliance with the financial covenants set forth in Section 9.9(c) hereof based on the most recent financial statements of Borrower received by Lender in accordance with Section 9.6 hereof, (ii) the Subsidiary formed or acquired or the person whose Capital Stock is purchased or the assets purchased or with whom Borrower has merged or consolidated, as the case may be, shall be engaged in any business which is reasonably related, ancillary or complementary to the business of Borrower as conducted on the date hereof, (iii) in the case of the purchase by Borrower of all or a substantial part of the assets or property of any Person or the merger or consolidation of Borrower, (A) in no event shall the total amount of capital contributions, loans or other amounts paid any Accounts acquired by Borrower pursuant to such acquisition or merger or consolidation be deemed Eligible Accounts unless and until Lender shall have conducted a field examination with respect to the assets to be acquired and so long as the results thereof are satisfactory, and then only to the extent the criteria for Eligible Accounts set forth herein are satisfied with respect thereto (and subject to such other advance percentage with respect thereto, as Lender may determine) and (B) upon the formation or acquisition request of all such SubsidiariesLender, together with all loans the Accounts acquired by Borrower pursuant to employees such acquisition or merger or consolidation can and shall be at all times after such acquisition or merger or consolidation be separately identified and reported to Lender in a manner satisfactory to Lender, (iv) in the case of Borrower, and amounts paid in connection with any merger or consolidation permitted under Section 10.7 hereof, exceed $1,500,000consolidation, (iiA) at Borrower shall be the time surviving corporation and (B) Borrower shall immediately upon the effectiveness of the merger or consolidation expressly confirm in writing pursuant to an agreement, in form and substance satisfactory to Lender, its continuing liability in respect of the Obligations and Financing Agreements and (C) any Obligor shall ratify and confirm, in form and substance satisfactory to Lender, that its guarantee of the Obligations shall apply to the Obligations of Borrower as the surviving corporation, (v) upon the effective date of such transaction, Lender shall have received a certificate duly executed and delivered by Borrower substantially in the form of Exhibit B hereto with respect to the transaction and the representations and warranties contained therein shall be true, correct and complete, (vi) as of the date of any such capital contribution, loan or other payment transaction and after giving effect thereto, no Event of Default or act, condition or event which with notice and or passage of time or both would constitute an Event of Default, shall exist or have occurredoccurred and be continuing, (iiivii) promptly upon Lender's request, Borrower shall deliver, or cause to be delivered to Lender, true, correct and complete copies of all agreements, documents and instruments relating to such transaction, and (viii) promptly upon Lender's request, Borrower shall execute and deliver, or cause to be executed and delivered, to Lender such agreements, documents and instruments in connection with such transaction as Lender may request, if any, including, without limitation, UCC financing statements, Collateral Access Agreements and any amendments or supplements hereto;
(e) stock or other securities issued to Borrower by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to Borrower or Parent in connection with the case insolvency, bankruptcy, receivership or reorganization of any loans by such Person or a composition or readjustment of the debts of such Person;
(f) obligations of Account Debtors to Borrower to a Subsidiary or employee, the indebtedness arising from such loans shall not be Accounts which are past due evidenced by any a promissory note or other instrumentmade by such Account Debtor payable to Borrower; PROVIDED, unless THAT, promptly upon the receipt of the original of any such promissory note by Borrower in an amount in excess of $50,000 at any time prior to an Event of Default or other instrument in any amount at any time an Event of Default exists or has occurred and is continuing, such promissory note shall be indorsed to the order of Lender by Borrower and promptly delivered to Agent, duly endorsed Lender as so indorsed;
(g) loans and assigned by the payee to Agent in a form and manner acceptable to Agent, (iv) in 50 the case of any loan advances by Borrower to employees of Borrower, Borrower or its Affiliates (other than as otherwise expressly permitted above) made after the date hereof not to exceed in the aggregate for all such loans shall be for reasonable and necessary work-related travel or other ordinary business expenses to be incurred by such employees in connection with their work for Borrower or for advances the relocation principal amount of such employees in connection with their work for Borrower$1,500,000, or for any other purpose related in any manner to their employment by BorrowerPROVIDED, and (v) THAT, 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 $2,500,000, and as of the date of any such capital contribution, loan or other payment advance and after giving effect thereto, the Excess Availability 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 not less than $1,000,000, andcontinuing;
(eh) the existing loans, advances and guarantees by Borrower outstanding as of the date hereof as set forth on Schedule 10.10 9.10 hereto; providedPROVIDED, thatTHAT, as to such loans, advances and guarantees, (i) Borrower shall -------- ---- not, directly or indirectly, (A) amend, modify, alter or change the material terms of such loans, advances or guarantees or any agreement, document or instrument related thereto, except that Borrower may, after prior written notice to Lender, amend, modify, alter or change the terms thereof so as to shorten the maturity date thereof or accelerate the timing, or increase the amount of any payments in respect thereof, or to increase the interest rate or any fees in connection therewith, 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 purpose, and (ii) Borrower shall furnish to Agent Lender all notices, notices or demands or other materials in connection with such loans, advances or guarantees or other Indebtedness subject to such guarantees either received by Borrower or on its behalf, promptly after the receipt thereof, or sent by Borrower or on its behalf, concurrently with the sending thereof, as the case may be.
Appears in 1 contract
Samples: Loan and Security Agreement (Startec Global Communications Corp)
Loans, Investments, Guarantees, Etc. Neither Borrower shall, directly or indirectly, make any loans or advance money or property to any person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the 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: (i) short-term direct obligations of the United States Government, (ii) negotiable certificates of deposit issued by any bank satisfactory to AgentLender, payable to the order of the such Borrower or to bearer and delivered to AgentLender, and (iii) commercial paper rated A1 or P1; provided, that, -------- ---- as to any of the foregoing, unless waived in writing by AgentLender, such Borrower shall take such actions as are deemed necessary by Agent Lender to perfect the security interest of Agent, for the ratable benefit of Lender, Lender in such investments;
; (c) the existing investment of Borrower in the Capital Stock of Children's Products, Inc.;
(d) capital contributions, loans or other payments by Borrower to any wholly-owned Subsidiary of Borrower formed after the date hereof in accordance with Section 9.7 or loans by Borrower to employees of Borrower after the date hereof, provided, that, 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 or for the formation or acquisition of all such Subsidiaries, together with all loans by Borrower to employees of Borrower, and amounts paid in connection with any merger or consolidation permitted under Section 10.7 hereof, exceed $1,500,000, (ii) at the time of any such 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, (iii) in the case of any loans by Borrower to a Subsidiary or employee, the indebtedness arising from such loans shall not be evidenced by any promissory note or other instrument, 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 50 the case of any loan by Borrower to employees of Borrower, such loans shall be for reasonable and necessary work-related travel or other ordinary business expenses to be incurred by such employees in connection with their work for Borrower or for the relocation of such employees in connection with their work for Borrower, or for any other purpose related in any manner to their employment by Borrower, and (v) 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 $2,500,000, 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 $1,000,000, and
(e) the existing loans, advances and guarantees set forth in the Information Certificate; and (d) so long as no Event of Default has occurred and is continuing, Borrowers may make loans, investments, guarantees, or purchases not otherwise permitted by Borrower clauses (a), (b), and (c) and not prohibited by any other provision herein, with notice in advance to Lender, provided, however, that the amount thereof (measured using the outstanding principal balance of loans, the gross purchase price of purchases and investments, and the total amount guaranteed) shall not exceed at any one time the lesser of: (1) $3,000,000; and (2) seventy percent (70%) of the difference between (i) the sum of (x) Borrowers' net worth at such time (as of reflected in the most recent financial statements delivered to Lender) plus (y) the net cash proceeds held on the date hereof as set forth on Schedule 10.10 hereto; provided, that, as to such loans, advances and guarantees, (i) Borrower shall -------- ---- not, directly or indirectly, (A) amend, modify, alter or change by Borrowers from any privately placed debt issued with provisions requiring the terms mandatory conversion of such loans, advances or guarantees or any agreement, document or instrument related thereto, or debt to equity plus (Bz) 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 the net cash proceeds of all equity issued after the date hereof by Borrowers; and (ii) Borrower shall furnish to Agent all notices, demands or other materials in connection with such loans, advances or guarantees either received by Borrower or on its behalf, promptly after the receipt thereof, or sent by Borrower or on its behalf, concurrently with the sending thereof, as the case may be$7,000,000.
Appears in 1 contract
Loans, Investments, Guarantees, Etc. Each US Borrower shall not, directly or indirectly, make any loans or advance money or property to any person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the 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: (i) short-term direct obligations of the United States US Government, (ii) negotiable certificates of deposit issued by any bank satisfactory to Agent, payable to the order of the a US Borrower or to bearer and delivered to Agent, and (iii) commercial paper rated A1 or P1; provided, that, -------- ---- as to any of the foregoing, unless waived in writing by AgentRequired Lenders, each US Borrower shall take such actions as are deemed necessary by Agent Required Lenders to perfect the security interest of Agent, for the ratable benefit of Lender, Agent in such investments;
; (c) the existing investment of Borrower in the Capital Stock of Children's Products, Inc.;
(d) capital contributions, loans or other payments by Borrower to any wholly-owned Subsidiary of Borrower formed after the date hereof in accordance with Section 9.7 or loans by Borrower to employees of Borrower after the date hereof, provided, that, 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 or for the formation or acquisition of all such Subsidiaries, together with all loans by Borrower to employees of Borrower, and amounts paid in connection with any merger or consolidation permitted under Section 10.7 hereof, exceed $1,500,000, (ii) at the time of any such 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, (iii) in the case of any loans by Borrower to a Subsidiary or employee, the indebtedness arising from such loans shall not be evidenced by any promissory note or other instrument, 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 50 the case of any loan by Borrower to employees of Borrower, such loans shall be for reasonable and necessary work-related travel or other ordinary business expenses to be incurred by such employees in connection with their work for Borrower or for the relocation of such employees in connection with their work for Borrower, or for any other purpose related in any manner to their employment by Borrower, and (v) 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 $2,500,000, 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 $1,000,000, and
(e) the existing loans, advances and guarantees by Borrower outstanding as of the date hereof as set forth on Schedule 10.10 8.10 hereto; provided, that, as to such loans, advances and guarantees, (i) each US Borrower 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 the obligations arising pursuant to such guarantee guarantees, or set aside or otherwise deposit or invest any sums for such purpose purpose, and (ii) each US Borrower shall furnish to Agent and Tranche B Agent all notices, notices or demands or other materials in connection with such loans, advances or guarantees or other indebtedness subject to such guarantees either received by Borrower it or on its behalf, promptly after the receipt thereof, or sent by Borrower it or on its behalf, concurrently with the sending thereof, as the case may be; (d) loans to SMTC Corporation and/or HTM not to exceed the amount, and to the extent such amount has not already been paid as dividends or loans to SMTC Corporation and/or HTM as provided, and for the purposes set forth, in Section 8.11 of this Agreement and Sections 8.10 and 8.11 of the Canadian Loan Agreement, required in any fiscal year of SMTC Corporation to allow (i) SMTC Corporation to pay its consolidated income taxes payable and (ii) SMTC Corporation and HTM to pay their respective administrative costs (being the legal and audit fees and insurance costs payable by SMTC Corporation on behalf of its Subsidiaries) consistent with past practice (as disclosed in writing to Agent prior to the Closing Date) up to US$2,500,000 in the aggregate per fiscal year of SMTC Corporation; (e) loans, advances, investments, purchases, repurchases, guarantees, assumptions, endorsements or responsibilities up to US$250,000 (less any amount used by Canadian Borrower in accordance with Section 8.10(e) of the Canadian Loan Agreement) in the aggregate per fiscal year of SMTC Corporation provided that (i) prior to any such action Total Excess Availability is greater than US$3,000,000 immediately after giving effect to such action or the average Total Excess Availability is greater than US$3,000,000 for the fifteen (15) days immediately preceding such action and (ii) any unused portion of such US$250,000 permitted amount may not be carried over to the next succeeding fiscal year of SMTC Corporation; and (f) Agent, Tranche B Agent and US Lenders acknowledge that SMTC Corporation and its indirect subsidiary SMTC Asia Limited propose to enter into a joint venture agreement (a draft of which has been provided to Agent and marked “Draft (7): July 7, 2008”) with Alco Holdings Limited and its indirect subsidiary Commusonic Industries Limited pursuant to which the parties thereto will agree to jointly pursue the formation of a company to be located in Hong Kong and named SMTC Alco Limited with its objective being to establish and operate a manufacturing facility in Xxxxx An, Guangdong Province, People’s Republic of China and US Borrowers agree to cause SMTC Asia Limited to provide Agent with such guarantees, and first-ranking security over its property as Agent may request, together with applicable certificates, resolutions and opinions related thereto, all in form and substance satisfactory to Agent in its sole discretion.
Appears in 1 contract
Samples: Us Loan Agreement (SMTC Corp)
Loans, Investments, Guarantees, Etc. None of the Borrowers shall directly or indirectly make any loans or advance money or property to any person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the 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: (i) short-term direct obligations of the United States Government, (ii) negotiable certificates of deposit issued by any bank satisfactory to AgentLender, payable to the order of the any Borrower or to bearer and delivered to AgentLender, and (iii) commercial paper rated A1 or P1; provided, that, -------- ---- as to any of the foregoing, unless waived in writing by AgentLender, Borrower Borrowers shall take such actions as are deemed necessary by Agent Lender to perfect the security interest of Agent, for the ratable benefit of Lender, Lender in such investments;
; (c) the existing investment of loans and advances by one Borrower in the Capital Stock of Children's Products, Inc.;
to another Borrower constituting permitted indebtedness under Section 9.9 hereof; (d) capital contributions, loans or other payments by Borrower to any wholly-owned Subsidiary of Borrower formed after the date hereof in accordance with Section 9.7 or loans by Borrower advances to employees of Borrower after Borrowers for travel and relocation expenses, in the date hereofordinary course of business, provided, that, each of not to exceed $500,000 in 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 or aggregate for the formation or acquisition of all such Subsidiaries, together with all loans by Borrower to employees of Borrower, and amounts paid in connection with any merger or consolidation permitted under Section 10.7 hereof, exceed $1,500,000, (ii) at the time of any such 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, (iii) in the case of any loans by Borrower to a Subsidiary or employee, the indebtedness arising from such loans shall not be evidenced advances by any promissory note or other instrument, 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 all Borrowers at any one time outstanding; and manner acceptable to Agent, (iv) in 50 the case of any loan by Borrower to employees of Borrower, such loans shall be for reasonable and necessary work-related travel or other ordinary business expenses to be incurred by such employees in connection with their work for Borrower or for the relocation of such employees in connection with their work for Borrower, or for any other purpose related in any manner to their employment by Borrower, and (v) 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 $2,500,000, 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 $1,000,000, and
(e) the existing loans, advances and guarantees by Borrower Borrowers outstanding as of the date hereof as set forth on Schedule 10.10 9.10 hereto; provided, that, as to such loans, advances and guarantees, (i) Borrower Borrowers 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 any such guarantee or set aside or otherwise deposit or invest any sums for such purpose and (ii) Borrower Borrowers shall furnish to Agent Lender all notices, demands or other materials material in connection with such loans, advances or guarantees either received by Borrower Borrowers or on its their behalf, promptly after the receipt thereof, or sent by Borrower Borrowers or on its their behalf, concurrently with the sending thereof, as the case may be.
Appears in 1 contract
Loans, Investments, Guarantees, Etc. (a) Borrower shall not, directly or indirectly, make any loans or advance money or property to any Person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the 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: (i) the endorsement of instruments for collection or deposit in the ordinary course of business;
; (bii) investments in: (i) short-term direct obligations of the United States Government, (ii) negotiable certificates of deposit issued by any bank satisfactory to AgentLender, payable to the order of the Borrower or to bearer and delivered to AgentLender, and (iii) commercial paper rated A1 or P1; provided, that, -------- ---- as to any of the foregoing, unless waived in writing by AgentLender, Borrower shall take such actions as are deemed necessary by Agent Lender to perfect the security interest of Agent, for the ratable benefit of Lender, Lender in such investments;
(c) the existing investment of Borrower in the Capital Stock of Children's Products, Inc.;
(d) capital contributions, loans or other payments by Borrower to any wholly-owned Subsidiary of Borrower formed after the date hereof in accordance with Section 9.7 or loans by Borrower to employees of Borrower after the date hereof, provided, that, 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 or for the formation or acquisition of all such Subsidiaries, together with all loans by Borrower to employees of Borrower, and amounts paid in connection with any merger or consolidation permitted under Section 10.7 hereof, exceed $1,500,000, (ii) at the time of any such 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, ; (iii) as otherwise agreed heretofore or hereafter in the case of any loans writing by Borrower to a Subsidiary or employeeLender, the indebtedness arising from such loans shall not be evidenced by any promissory note or other instrument, 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 50 the case of any loan by Borrower to employees of Borrower, such loans shall be for reasonable and necessary work-related travel or other ordinary business expenses to be incurred by such employees in connection with their work for Borrower or for the relocation of such employees in connection with their work for Borrower, or for any other purpose related in any manner to their employment by Borrower, and (v) 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 $2,500,000, 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 $1,000,000, and
(e) the existing loans, advances and guarantees by Borrower outstanding as of the date hereof as set forth on Schedule 10.10 9.10 hereto; provided, that, as to such loans, advances and guaranteesguarantees set forth on Schedule 9.10, (i) Borrower 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 the obligations arising pursuant to such guarantee guarantees, or set aside or otherwise deposit or invest any sums for such purpose purpose, and (ii) Borrower shall furnish to Agent Lender all notices, notices or demands or other materials in connection with such loans, advances or guarantees or other indebtedness subject to such guarantees either received by Borrower or on its behalf, promptly after the receipt thereof, or sent by Borrower or on its behalf, concurrently with the sending thereof, as the case may be.
(b) Notwithstanding the foregoing provisions, Borrower may extend one or more secured loans or credit facilities to the unaffiliated start-up connector company identified in the Disclosure Letter as “Company #2”, or its successor (“CONNECTOR COMPANY”), subject to the conditions that: (i) for the thirty (30) calendar day period prior to Borrower making any loan advance, extension of credit or other financial accommodation to or for the benefit of CONNECTOR COMPANY, and after giving effect to such loan advance, extension of credit, or financial accommodation, as the case may be, the Excess Availability shall be not less than One Million Dollars ($1,000,000); (ii) No uncured or unwaived Event of Default shall have occurred and be continuing under this Agreement or shall occur by reason of and after giving effect to such loans, extensions of credit and other financial accommodations to CONNECTOR COMPANY; (iii) the maximum principal balance of such loans, extensions of credit and other financial accommodations shall not at any time exceed Two Million Five Hundred Thousand Dollars ($2,500,000.00); and (iv) Borrower will deliver to Lender copies of all instruments, documents and agreements related to the CONNECTOR COMPANY transaction and such other documents, instruments and agreements relating thereto as Lender may reasonably request.
Appears in 1 contract
Loans, Investments, Guarantees, Etc. (a) the endorsement of instruments for collection or deposit in the ordinary course of business;
(b) investments in: in cash or Cash Equivalents, provided, that, (i) short-term direct obligations no -------- ---- Prime Rate Revolving Loans are then outstanding, except that, notwithstanding ------ ---- that any Prime Rate Revolving Loans are outstanding, any Borrower may from time to time in the ordinary course of business consistent with the current practices of such Borrower as of the United States Government, date hereof make deposits of cash or other immediately available funds in operating demand deposit accounts used for disbursements to the extent required to provide funds for amounts drawn or anticipated to be drawn shortly on such accounts and such funds may be held in Cash Equivalents consisting of overnight investments until so drawn (iiso long as such funds and Cash Equivalents are not held more than five (5) negotiable certificates Business Days from the date of the initial deposit issued thereof and do not exceed $10,000,000 at any time exclusive of the amount of any Credit Balance Cash Collateral) and (ii the terms and conditions of Section 5.4 hereof shall have been satisfied with respect to the deposit account or investment account in which such cash or Cash Equivalents here held;
(c) loans of money by any bank satisfactory Borrower to Agent, payable to the order of the any Person (other than another Borrower or to bearer and delivered to Agent, and Obligor) after the date hereof or investments by Borrowers by capital contribution in any Person (iiiother than another Borrower or Obligor) commercial paper rated A1 or P1after the date hereof other than the investments otherwise permitted in this Section 9.10); provided, that, -------- ---- as to any of the foregoing, unless waived in writing by Agent, Borrower shall take such actions as are deemed necessary by Agent to perfect the security interest of Agent, for the ratable benefit of Lender, in such investments;
(c) the existing investment of Borrower in the Capital Stock of Children's Products, Inc.;
(d) capital contributions, loans or other payments by Borrower to any wholly-owned Subsidiary of Borrower formed after the date hereof in accordance with Section 9.7 or loans by Borrower to employees of Borrower after the date hereof, provided, thatinvestments, each of the -------- ---- following conditions is satisfied as -------- ---- determined by Agent: (i) the Person receiving such loan or investment is engaged in no event shall a business related, ancillary or complimentary to the total amount business of capital contributions, loans or other amounts paid by any Borrower to or for the formation or acquisition of all such Subsidiaries, together with all loans by Borrower to employees of Borrower, and amounts paid permitted in connection with any merger or consolidation permitted under Section 10.7 hereof, exceed $1,500,000this Agreement, (ii) at as of the time date of any such capital contribution, loan or other payment investment and after giving effect thereto, no Event of Default Default, or act, condition or event which with notice and or passage of time or both would constitute an Event of Default, Default shall exist or have occurred, (iii) in the case of any loans by Borrower to a Subsidiary or employee, the indebtedness arising from such loans shall not be evidenced by any promissory note or other instrument, 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 50 the case of any loan by Borrower to employees of Borrower, such loans shall be for reasonable and necessary work-related travel or other ordinary business expenses to be incurred by such employees in connection with their work for Borrower or for the relocation of such employees in connection with their work for Borrower, or for any other purpose related in any manner to their employment by Borrower, and (vii) 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 $2,500,000, and as of the date of any such capital contribution, loan or other payment investment and after giving effect thereto, the Excess Availability shall be not less than $1,000,00050,000,000, and(iv) the aggregate amount of all such loans or investments in any calendar year shall not exceed $4,000,000, (v) the aggregate amount of all such loans or investments during the term of this Agreement shall not exceed $10,000,000, (vi) Agent shall have received (A) not less than ten (10) Business Days' prior written notice thereof setting forth in reasonable detail the nature and terms thereof, (B) true, correct and complete copies of all agreements, documents and instruments relating thereto and (C) such other information with respect thereto as Agent may reasonably request and (vi in the case of an investment by capital contribution, at Agent's option, the original of any Capital 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, and promptly upon Agent's request, such Borrower or Obligor shall execute and deliver to Agent in form and substance satisfactory to Agent, a pledge and security agreement granting to Agent a first pledge of and lien on all of the issued and outstanding shares of such Capital Stock, (vi in the case of loans of money or property, the original of any promissory note or other instrument evidencing the Indebtedness arising pursuant to such loans shall be delivered, or caused to be delivered, to Agent, at Agent's option, together with an appropriate endorsement and with full recourse to the payee thereof;
(ed) the existing loansloans of money by Borrowers or investments by Borrowers by capital contribution, advances directly or indirectly in M and guarantees by Borrower outstanding as of A Joint Venture LLC after the date hereof as set forth on Schedule 10.10 heretohereof; provided, that, as to any such loansloans or investments, advances each of the -------- ---- following conditions is satisfied as determined by Agent: (i) as of the date of any such loan or investment and guaranteesafter 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, (ii as of the date of any such loan or investment and after giving effect thereto, the Excess Availability shall be not less than $20,000,000, (ii the aggregate amount of all such loans or investments during the term of this Agreement shall not exceed $4,000,000, and (iv Agent shall have received (A) not less than ten (10) Business Days' prior written notice thereof setting forth in reasonable detail the nature and terms thereof, (B) true, correct and complete copies of all agreements, documents and instruments relating thereto and (C) such other information with respect thereto as Agent may reasonably request;
(e) the existing equity investments of Borrowers and Obligors as of the date hereof in its Subsidiaries, provided, that, except as set forth in -------- ---- Section 9.10(d) hereof, no Borrower or Obligor shall have any further obligations or liabilities to make any capital contributions or other additional investments or other payments to or in or for the benefit of any of such Subsidiaries except as set forth on Schedule 9.10 hereto;
(f) unsecured guarantees by Borrowers and Obligors of the obligations of any Subsidiary of any Borrower 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 existing as of the date hereof;
(g) unsecured guarantees by Parent arising after the date hereof of the obligations of any Subsidiary of Parent to any third party in the ordinary course of business;
(h) guarantees by any Borrower or Subsidiaries of Borrowers of the Obligations in favor of Agent and Lenders;
(i) stock or obligations issued to any Borrower by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to such Borrower in connection with the insolvency, bankruptcy, receivership or reorganization of such Person or a composition or readjustment of the debts of such Person; provided, that, the original of any such stock or instrument -------- ---- evidencing such obligations shall be promptly delivered to Agent, upon Agent's request, together with such stock power, assignment or endorsement by such Borrower as Agent may request;
(j) loans or investments by a Borrower or an Obligor to or in any other Obligor or Borrower, provided, that, (i) as of the date of any such loan or investment and after giving effect thereto, no Event of Default, shall exist or have occurred, and (ii) all Financing Agreements previously executed and delivered by such Obligor are in full force and effect;
(k) loans by any Borrower shall or Obligor to FSC in respect of Qualified Securitization Transactions, provided, that, as to any such loans, each of the -------- ---- following conditions is satisfied as determined by Agent: (i) 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, (ii) as of the date of any such loan and after giving effect thereto, the Excess Availability shall be not less than $35,000,000, (ii) (A) during the period commencing February 1st through October 31st in any calendar year the aggregate amount of all such loans outstanding at any time shall not exceed $8,000,000, (B) during the period commencing November 1st of each calendar year through the end of January 31st of the immediately succeeding calendar year, the maximum aggregate outstanding amount of all such loans shall not exceed $14,000,000; provided, -------- that, the maximum aggregate outstanding amount of all loans permitted under ---- clause (B) for the period commencing December 20th through December 29th of each calendar year may be $20,000,000, (C) provided, that, the maximum aggregate permitted outstanding amount of all such loans under clauses (A) and (B) during the period commencing April 1, 2002 through November 30, 2002 may increase by $5,000,000, and provided, further, that, in the event that the amount of outstanding loans to FSC at any time, exceed the applicable maximum amounts provided for in this clause (iii) or clause (iv) below, Borrowers shall have three (3) Business Days to cure any such excess, and (D) notwithstanding anything to the contrary set forth in this Section 9.10(k), if as of the date of any such loan and after giving effect thereto, Excess Availability shall be not less than $125,000,000, the maximum aggregate permitted outstanding amount of all such loans under clauses (A) and (B) shall increase by $5,000,000, (iv notwithstanding the maximum permitted outstanding loan amounts set forth in clause (iii) above, the maximum aggregate outstanding amount of all such loans cannot exceed $3,000,000 during one calendar day of each calendar week during the term of this Agreement (for purposes of determining compliance with this clause (iv), the term "loans" shall only include loans made by any Borrower or Obligor to FSC to enable FSC to make payments to CS Delaware under the C.D. Credit Plan Agreement) and (v) such loans are not being made to fund any amounts owing to Originator or any other Financing Subsidiary in respect of the Co- Branded Card; provided, that, in the event that the only condition prohibiting any Borrower or Obligor from making loans to FSC is a failure to satisfy the conditions set forth in clause (ii) above, then any of the Foreign Subsidiaries may make such loans provided, that, each of the other conditions of this Section 9.10(k) are satisfied;
(l) loans by a Subsidiary of Parent (other than a Borrower or Obligor) to a Borrower or Obligor, provided, that, (i) the Indebtedness arising pursuant to such loan shall be subject to, and subordinate in right of payment to, the right of Agent to receive the prior final payment and satisfaction in full of all of the Obligations on terms and conditions acceptable to Agent, and (ii) such Borrower or Obligor shall not, directly or indirectlyindirectly make, or be required to make, any payments in respect of such Indebtedness;
(m) not form or acquire any Subsidiaries after the date hereof, except, for, the organization or acquisition of new U.S. Subsidiaries which (i) promptly upon any such formation or acquisition (but no later than thirty (30) days after the organization or acquisition thereof), Parent and Borrowers shall cause any such Subsidiary (other than a Financing Subsidiary) to execute and deliver to Agent, in form and substance satisfactory to Agent, (A) amendan absolute and unconditional guarantee of payment of any and all present and future Obligations of Borrowers to Agent, modify, alter or change the terms of such loans, advances or guarantees or any agreement, document or instrument related thereto, or (B) a security agreement granting to Agent a first and prior security interest and lien (except as otherwise consented to in writing by Agent) upon all of the assets of such guaranteesSubsidiary, redeem(C) related UCC Financing Statements, retireand (D) such other agreements, defeasedocuments and instruments as Agent may require, purchase including, but not limited to, supplements and amendments hereto and other loan agreements or otherwise acquire instruments evidencing indebtedness of such new Subsidiary to Agent, (ii promptly upon Agent's request: (A) such Borrower shall execute and deliver to Agent in form and substance satisfactory to Agent, a pledge and security agreement granting to Agent a first pledge of and lien on all of the issued and outstanding shares of Capital Stock of such Subsidiary, and (B) 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), and (ii as of the date of such organization or formation 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;
(n) an unsecured guarantee by Parent or set aside CS Delaware of the obligations of FSC to Originator in respect of any Qualified Securitization Transactions, to the extent required by any Governmental Authority having regulatory authority over Originator or otherwise deposit any other unsecured Standard Securitization Undertaking, provided, that, (i) any payments made by Parent or invest any sums for such purpose CS Delaware in respect of -------- ---- thereof shall be deemed an outstanding loan under Section 9.10(k) hereof and (ii) Borrower no such guarantee shall furnish be made, in respect of Qualified Securitization Transactions related to Agent all notices, demands the Co-Branded Card; and
(o) unsecured guarantee obligations of Parent in favor of The Limited or other materials in connection with such loans, advances or any of its Affiliates pursuant to the Purchase Agreements; and
(p) guarantees either received by Borrower or listed on its behalf, promptly after the receipt thereof, or sent by Borrower or on its behalf, concurrently with the sending thereof, as the case may beOmnibus Schedule 14.
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 any loans or advance money or property to any Person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the Capital Stock or Indebtedness or all or a substantial part of the assets or property of any Person, or guarantee, assume, endorse, or otherwise become responsible for (directly or indirectly) the Indebtedness, performance, obligations or dividends of any 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 or Canadian Lender;
(b) the endorsement of instruments for collection or deposit in the ordinary course of business;
(bc) investments inin cash or Cash Equivalents so long as there are no Loans outstanding and such investments are pledged and delivered to Agent upon Agent’s request; except that Borrowers shall not be required to pledge and deliver such investments to Agent at any time that all of the following conditions are satisfied: (i) short-term direct obligations the aggregate Excess Availability of the United States GovernmentBorrowers is not less than $25,000,000, and (ii) negotiable certificates of deposit issued by any bank satisfactory to Agent, payable to the order of the Borrower or to bearer and delivered to Agent, and (iii) commercial paper rated A1 or P1; provided, that, -------- ---- as to any of the foregoing, unless waived in writing by Agent, Borrower shall take such actions as are deemed necessary by Agent to perfect the security interest of Agent, for the ratable benefit of Lender, in such investments;
(c) the existing investment of Borrower in the Capital Stock of Children's Products, Inc.;
(d) capital contributions, loans or other payments by Borrower to any wholly-owned Subsidiary of Borrower formed after the date hereof in accordance with Section 9.7 or loans by Borrower to employees of Borrower after the date hereof, provided, that, 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 or for the formation or acquisition of all such Subsidiaries, together with all loans by Borrower to employees of Borrower, and amounts paid in connection with any merger or consolidation permitted under Section 10.7 hereof, exceed $1,500,000, (ii) at the time of any such capital contribution, loan or other payment and after giving effect thereto, no Event of Default or act, condition or event which with notice and or passage of time or both would constitute an in Event of Default, shall exist or have occurred, occurred and be continuing;
(iiid) the existing equity investments of each Borrower and Guarantor as of the date hereof in its respective Subsidiaries as of the date hereof;
(e) stock or obligations issued to a Borrower by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to such Borrower in connection with the case insolvency, bankruptcy, receivership or reorganization of any loans by Borrower to such Person or a Subsidiary composition or employeereadjustment of the debts of such Person; provided, the indebtedness arising from such loans shall not be evidenced by any promissory note or other instrumentthat, unless the original of any such note stock or other instrument is evidencing such obligations shall be promptly delivered to Agent, duly upon Agent’s request, together with such stock power, assignment or endorsement by such Borrower as Agent may request;
(f) obligations or account debtors to a Borrower arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to such Borrower; provided, that, promptly upon the receipt of the original of any such promissory note by such Borrower, such promissory note shall be endorsed to the order of Agent, for itself and assigned the ratable benefit of Lenders, by the payee such Borrower and promptly delivered to Agent in a form as so endorsed;
(g) loans and manner acceptable to Agentadvances by any Borrower, (iv) in 50 the case of Guarantor or any loan by Borrower Subsidiary to employees of such Borrower, such loans shall be for reasonable Guarantor or Subsidiary not to exceed the principal amount of $1,000,000 in the aggregate at any time outstanding for: (i) reasonably and necessary work-related travel or other ordinary business expenses to be incurred by such employees employee in connection with their work for Borrower such Borrower, Guarantor or for the Subsidiary and (ii) reasonable and necessary relocation expenses of such employees (including home mortgage financing for relocated employees);
(h) 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(d);
(i) 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 $500,000 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;
(j) loans by any Borrower to senior management employees of such Borrower in connection with their work for a proposed Business Unit Sale of the assets or Capital Stock of such Borrower, provided, that, promptly upon Agent’s request, Borrowers shall provide to Agent a copy or for the original of all agreements evidencing or relating to such arrangements, including the original of any other purpose related in any manner note evidencing the Indebtedness arising pursuant to their employment by Borrowersuch loans, and (v) such other information with respect thereto 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 $2,500,000, 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 $1,000,000, andAgent may request;
(ek) the existing loans, advances and guarantees by any Borrower and Guarantor outstanding as of the date hereof as set forth on Schedule 10.10 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 and (ii) Borrower Borrowers and Guarantor shall furnish to Agent all notices, notices or demands or other materials in connection with such loans, advances or guarantees either received by any 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; and
(l) loans of money or property (other than Collateral) to any Person, or investment by capital contribution in any Person (other than as otherwise permitted above); provided, that, as to any such loans or investments, each of the following conditions is satisfied: (i) the Person receiving such loan or investment is engaged in a business related, ancillary or complimentary to the business of Borrowers and Guarantors as conducted on the date hereof, (ii) the total amount of any such loans or investments shall not exceed $10,000,000 in the aggregate, (iii) as of the date of any such loan or 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 in Event of Default, shall exist or have occurred and be continuing, (iv) in the case of an investment by capital contribution, at Agent’s option, the original of any stock or other instrument evidencing such capital contribution shall be promptly delivered to Agent, for the benefit of Lenders, together with such stock power, assignment or endorsement as Agent may request, (v) in the case of loans of money or property, the original of any promissory note or other instrument evidencing the Indebtedness arising pursuant to such loans shall be delivered, or caused to be delivered, to Agent, for the benefit of Lenders, at Agent’s option, together with an appropriate endorsement and with full recourse to the payee thereof, (vi) as of the date of any loan or investment and after giving thereto, the aggregate Excess Availability of Borrowers shall be not less than $25,000,000, (vii) as of the date of any loan or investment and after giving effect thereto, the combined Net Worth of Borrowers shall be not less than $50,000,000 and (viii) Agent shall have received (A) not less than five (5) Business Days prior written notice thereof setting forth in reasonable detail the nature and terms thereof, (B) true, correct and complete copies of all agreements, documents and instruments relating thereto and (C) such other information with respect thereto as Agent may request.
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 any loans or advance money or property to any Person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the Capital Stock or Indebtedness or all or a substantial part of the assets or property of any Person, or guarantee, assume, endorse, or otherwise become responsible for (directly or indirectly) the Indebtedness, performance, obligations or dividends of any 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 inin cash or Cash Equivalents so long as there are no Loans outstanding and such investments are pledged and delivered to Agent upon Agent's request; except that Borrowers shall not be required to pledge and deliver such investments to Agent at any time that all of the following conditions are satisfied: (i) short-term direct obligations the aggregate Excess Availability of the United States GovernmentBorrowers is not less than $25,000,000, and (ii) negotiable certificates of deposit issued by any bank satisfactory to Agent, payable to the order of the Borrower or to bearer and delivered to Agent, and (iii) commercial paper rated A1 or P1; provided, that, -------- ---- as to any of the foregoing, unless waived in writing by Agent, Borrower shall take such actions as are deemed necessary by Agent to perfect the security interest of Agent, for the ratable benefit of Lender, in such investments;
(c) the existing investment of Borrower in the Capital Stock of Children's Products, Inc.;
(d) capital contributions, loans or other payments by Borrower to any wholly-owned Subsidiary of Borrower formed after the date hereof in accordance with Section 9.7 or loans by Borrower to employees of Borrower after the date hereof, provided, that, 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 or for the formation or acquisition of all such Subsidiaries, together with all loans by Borrower to employees of Borrower, and amounts paid in connection with any merger or consolidation permitted under Section 10.7 hereof, exceed $1,500,000, (ii) at the time of any such capital contribution, loan or other payment and after giving effect thereto, no Event of Default or act, condition or event which with notice and or passage of time or both would constitute an in Event of Default, shall exist or have occurred, occurred and be continuing;
(iiid) the existing equity investments of each Borrower and Guarantor as of the date hereof in its respective Subsidiaries as of the date hereof;
(e) stock or obligations issued to a Borrower by any Person (or the representative of such Person) in respect of Indebtedness of such Person owing to such Borrower in connection with the case insolvency, bankruptcy, receivership or reorganization of any loans by Borrower to such Person or a Subsidiary composition or employeereadjustment of the debts of such Person; PROVIDED, the indebtedness arising from such loans shall not be evidenced by any promissory note or other instrumentTHAT, unless the original of any such note stock or other instrument is evidencing such obligations shall be promptly delivered to Agent, duly upon Agent's request, together with such stock power, assignment or endorsement by such Borrower as Agent may request;
(f) obligations or account debtors to a Borrower arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to such Borrower; PROVIDED, THAT, promptly upon the receipt of the original of any such promissory note by such Borrower, such promissory note shall be endorsed to the order of Agent, for itself and assigned the ratable benefit of Lenders, by the payee such Borrower and promptly delivered to Agent in a form as so endorsed;
(g) loans and manner acceptable to Agentadvances by any Borrower, (iv) in 50 the case of Guarantor or any loan by Borrower Subsidiary to employees of such Borrower, such loans shall be for reasonable Guarantor or Subsidiary not to exceed the principal amount of $1,000,000 in the aggregate at any time outstanding for: (i) reasonably and necessary work-work- related travel or other ordinary business expenses to be incurred by such employees employee in connection with their work for Borrower such Borrower, Guarantor or for the Subsidiary and (ii) reasonable and necessary relocation expenses of such employees (including home mortgage financing for relocated employees);
(h) 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(d);
(i) 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 $500,000 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;
(j) loans by any Borrower to senior management employees of such Borrower in connection with their work for a proposed Business Unit Sale of the assets or Capital Stock of such Borrower, PROVIDED, THAT, promptly upon Agent's request, Borrowers shall provide to Agent a copy or for the original of all agreements evidencing or relating to such arrangements, including the original of any other purpose related in any manner note evidencing the Indebtedness arising pursuant to their employment by Borrowersuch loans, and (v) such other information with respect thereto 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 $2,500,000, 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 $1,000,000, andAgent may request;
(ek) the existing loans, advances and guarantees by any Borrower and Guarantor outstanding as of the date hereof as set forth on Schedule 10.10 9.10 hereto; providedPROVIDED, thatTHAT, 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 and (ii) Borrower Borrowers and Guarantor shall furnish to Agent all notices, notices or demands or other materials in connection with such loans, advances or guarantees either received by any 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.; and
(l) loans of money or property (other than Collateral) to any Person, or investment by capital contribution in any Person (other than as otherwise permitted above); PROVIDED, THAT, as to any such loans or investments, each of the following conditions is satisfied: (i) the Person receiving such loan or investment is engaged in a business related, ancillary or complimentary to the business of Borrowers and Guarantors as conducted on the date hereof, (ii) the total amount of any such loans or investments shall not exceed $10,000,000 in the aggregate, (iii) as of the date of any such loan or investment and after giving effect thereto, no Event of Default or act,
Appears in 1 contract
Loans, Investments, Guarantees, Etc. Borrower shall not, and shall not permit any Subsidiary to, directly or indirectly, make any loans or advance money or property to any Person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the Capital Stock or Indebtedness or all or a substantial part of the assets or property of any Person, or guarantee, assume, endorse, or otherwise become responsible for (directly or indirectly) the Indebtedness, performance, obligations or dividends of any 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: (i) short-term direct obligations of the United States Government, (ii) negotiable certificates of deposit issued by any bank satisfactory to Agent, payable to the order of the Borrower or to bearer in Cash Equivalents which shall be pledged and delivered to Agent upon Agent, and (iii) commercial paper rated A1 or P1; provided, that, -------- ---- as to any of the foregoing, unless waived in writing by Agent, Borrower shall take such actions as are deemed necessary by Agent to perfect the security interest of Agent, for the ratable benefit of Lender, in such investments's request;
(c) the existing investment equity investments of Borrower in the Capital Stock of Children's Products, Inc.;
(d) capital contributions, loans its existing Subsidiaries and any Subsidiaries formed or other payments by Borrower to any wholly-owned Subsidiary of Borrower formed acquired after the date hereof to the extent permitted under and in accordance with Section 9.7 or loans by Borrower to employees 7.2 hereof, PROVIDED, THAT, (1) as of Borrower after the date hereofof such investment and after giving effect thereto, providedno Event of Default, thator act, each condition or event which with notice or passage of the following conditions is satisfied as -------- ---- determined by Agent: time or both would constitute an Event of Default shall exist or have occurred and (i2) in no event shall the total amount of any capital contributions, loans contributions or other amounts paid by Borrower to or for the formation or acquisition of all such Subsidiaries, together with all loans by Borrower to employees of Borrower, and amounts paid in connection with any merger or consolidation permitted under Section 10.7 hereof, exceed $1,500,000, (ii) at the time of any such capital contribution, loan Subsidiaries formed or other payment and acquired 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, (iii) in the case of any loans by Borrower to a Subsidiary or employee, the indebtedness arising from such loans shall not be evidenced by any promissory note or other instrument, 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 50 the case of any loan by Borrower to employees of Borrower, such loans shall be for reasonable and necessary work-related travel or other ordinary business expenses to be incurred by such employees in connection with their work for Borrower or for the relocation of such employees in connection with their work for Borrower, or for any other purpose related in any manner to their employment by Borrower, and (v) 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 $2,500,000, 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 $1,000,000, and
(e) the existing loans, advances and guarantees by Borrower outstanding as of the date hereof as set forth on Schedule 10.10 hereto; provided, that, as to such loans, advances and guarantees, (i) Borrower shall -------- ---- not, directly or indirectly, (A) amend, modify, alter or change exceed $500,000 in 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 aggregate and (ii3) such Subsidiary has executed and delivered a guarantee of the Obligations in favor of Agent and Lenders and such other agreements as are required under Section 7.2 hereof;
(d) guarantees by any wholly-owned Subsidiary of Borrower shall furnish to of the Obligations in favor of Agent all notices, demands or other materials in connection with such loans, advances or guarantees either received by Borrower or on its behalf, promptly after the receipt thereof, or sent by Borrower or on its behalf, concurrently with the sending thereof, as the case may be.and Lenders;
Appears in 1 contract
Samples: Loan and Security Agreement (Industrial Fuels Minerals Co)
Loans, Investments, Guarantees, Etc. (a) Borrower shall not, directly or indirectly, make any loans or advance money or property to any person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the 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:
(i) the endorsement of instruments for collection or deposit in the ordinary course of business;
(bii) investments in: loans or advances of money (iother than salary) short-term direct obligations to officers, directors, employees, independent contractors, or stockholders of Borrower consisting of (A) expense advances in the United States Governmentordinary course of business consistent with past practices, (iiB) negotiable certificates of deposit issued by loans, not to exceed Five Hundred Thousand Dollars ($500,000), individually, or One Million Dollars ($1,000,000) outstanding in the aggregate at any bank satisfactory time, incidental to Agent, payable to the order of the Borrower recruiting or to bearer and delivered to Agentrelocating officers, and (iiiC) commercial paper rated A1 or P1; provided, that, -------- ---- as to any non-cash loans in connection with the exercise of the foregoing, unless waived in writing by Agent, Borrower shall take such actions as are deemed necessary by Agent to perfect the security interest of Agent, for the ratable benefit of Lender, in such investmentsstock options;
(ciii) the existing investment of Borrower in the Capital Stock of Children's Products, Inc.;
(d) capital contributions, loans or other payments by Borrower to any wholly-owned Subsidiary of Borrower formed after the date hereof in accordance with Section 9.7 or loans by Borrower to employees of Borrower after the date hereof, provided, that, 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 or for the formation or acquisition of all such Subsidiaries, together with all loans by Borrower to employees of Borrower, and amounts paid in connection with any merger or consolidation permitted under Section 10.7 hereof, exceed $1,500,000, (ii) at the time of any such 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, (iii) in the case of any loans by Borrower to a Subsidiary or employee, the indebtedness arising from such loans shall not be evidenced by any promissory note or other instrument, 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 50 the case of any loan by Borrower to employees of Borrower, such loans shall be for reasonable and necessary work-related travel or other ordinary business expenses to be incurred by such employees in connection with their work for Borrower or for the relocation of such employees in connection with their work for Borrower, or for any other purpose related in any manner to their employment by Borrower, and (v) 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 $2,500,000, 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 $1,000,000, and
(e) the existing loans, advances and guarantees by Borrower outstanding as of the date hereof as set forth on Schedule 10.10 9.10 hereto; providedand
(iv) except as otherwise permitted hereunder; PROVIDED, thatTHAT, as to such loans, advances and guarantees, (i) Borrower shall -------- ---- notto the extent requested by Lender, 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 and (ii) Borrower shall furnish to Agent Lender all notices, notices or demands or other materials in connection with such loans, advances or guarantees or other indebtedness subject to such guarantees either received by Borrower or on its behalf, promptly after the receipt thereof, or sent by Borrower or on its behalf, concurrently with the sending thereof, as the case may be.
(b) Notwithstanding anything to the contrary contained in Section 9.9 or this Section 9.10, provided no Event of Default exists and is continuing:
(i) Borrower shall be permitted to purchase a controlling ownership in the stock of any Person (a "STOCK ACQUISITION"; and such Person whose shares of capital are acquired in the Stock Acquisition is hereinafter referred to as the "TARGET COMPANY") or all or a substantial part of the assets or property of any Person (an "ASSET ACQUISITION"; and the assets to be acquired upon consummation of the Asset Acquisition are hereinafter collectively referred to as the "ACQUIRED ASSETS"), provided the Target Company is engaged in, or the Acquired Assets are then used in, a business (the "ACQUIRED BUSINESS") similar or related to Borrower's business as presently conducted, PROVIDED THAT (A) Borrower provides Lender with thirty (30) Business Days' prior written notice of each contemplated Stock Acquisition or Asset Acquisition (hereinafter, an "ACQUISITION"), which notice shall describe the proposed Acquisition in reasonable detail, including the total amount of consideration to be paid by Borrower in connection therewith and a description of the assets or stock to be acquired, (B) contemporaneously with the consummation of the Acquisition, Borrower shall have granted Lender a first priority, perfected security interest in and lien upon or pledge of (as applicable) all of the stock or assets acquired by Borrower upon consummation of the Acquisition, subject to no other liens or encumbrances except for those that shall be acceptable to Lender in its discretion ("PERMITTED LIENS"), (C) notwithstanding anything to the contrary contained herein, the Accounts and Inventory that are owned by the Target Company or that constitute a part of the Acquired Assets (as applicable) and that arise or are acquired as a result of Borrower's operation of the Acquired Business after consummation of the Acquisition will not be Eligible Accounts or Eligible Inventory hereunder unless and until Lender shall have completed a field examination and, if Lender reasonably requests, conduct an appraisal with respect thereto, the results of which, together with any legal due diligence as Lender shall request, shall be satisfactory to Lender in all respects, and, in the case of a Stock Acquisition, Lender shall have received from the Target Company all documents, instruments and agreements as Lender shall reasonably require in connection therewith, in form and substance satisfactory to Lender, including, without limitation, a guarantee by the Target Company of all of the Obligations to Lender and a general security agreement and related UCC-1 financing statements pursuant to which Lender shall have received a first priority, perfected security interest in and lien upon all of the Target Company's assets and properties, including, without limitation, its Accounts and Inventory, subject to no other liens or encumbrances except Permitted Liens; (D) after giving effect to the proposed Acquisition, Borrower shall have Excess Availability of not less than $20,000,000, except that if the condition precedent set forth in the immediately preceding clause (C) has been satisfied in full, in Lender's sole judgment, as of the date of consummation of the Acquisition, then the Acquired Assets consisting of Accounts and Inventory of the Acquired Business shall be taken into account by Lender in calculating Borrower's Excess Availability for the purposes of this clause (D); and
(ii) Borrower shall be permitted to make, in the ordinary course of Borrower's business in accordance with practices and policies previously disclosed in writing to Lender, (A) loans and advances evidenced by Accounts Settlement Agreements permitted pursuant to Section 7.2(c)(iii) hereof and (B) so long as Borrower has, in each instance, Excess Availability of not less than $10,000,000, loans and advances to certain Persons who sell and supply to Borrower goods consisting of musical recordings, intellectual property rights, distribution rights, or video records, games or accessories or other related products or who manufacture such goods for such Persons (individually, a "DESIGNATED VENDOR", and collectively, "DESIGNATED VENDORS"), PROVIDED THAT, (1) if, after giving effect to the proposed loan or advance, Borrower has Excess Availability of not less than (x) $10,000,000 on the date of such loan or advance, the maximum aggregate amount of all loans and advances to any Designated Vendor shall not exceed the aggregate amount of $1,000,000 outstanding at any given time, (y) $25,000,000 on the date of such loan or advance, the maximum aggregate amount of all loans and advances to any Designated Vendor shall not exceed the aggregate amount of $5,000,000 outstanding at any given time, and (z) $50,000,000 on the date of such loan or advance, the maximum aggregate amount of all loans and advances to any Designated Vendor shall not exceed the aggregate amount of $5,000,000 outstanding at any given time; and (2) the maximum aggregate amount of all loans and advances to all Designated Vendors outstanding at any given time shall not exceed $15,000,000; and
(iii) Borrower shall be permitted to form a subsidiary, acquire a minority equity interest in a Person or contribute assets or properties to a joint venture, PROVIDED THAT, during the term of this Agreement, the maximum aggregate amount of all investments permitted under this Section 9.10(b)(iii) shall not exceed $20,000,000 and, PROVIDED FURTHER THAT, in each instance (A) Borrower pledges or assigns in favor of Lender as Collateral for the Obligations, all of Borrower's right, title and interest in and to such subsidiary, equity ownership in such Person, or joint venture and executes and delivers such agreements and documentation as Lender shall reasonably request to perfect such security interest, and (B) the maximum aggregate amount of such investments permitted under this Section 9.10(b)(iii) shall not exceed, in each instance, the following amounts:
(1) If the Monthly Excess Availability for the six (6) calendar months immediately preceding the date of any proposed investment permitted hereunder is equal to or greater than $40,000,000 and, after giving effect to the proposed investment permitted hereunder, Borrower has Excess Availability of not less than $40,000,000, then the maximum amount of such investment shall be $5,000,000, PROVIDED THAT, after giving effect to the proposed investment, the aggregate amount of all existing investments permitted under this Section 9.10(b)(iii) does not and will not exceed $5,000,000; and
(2) If the Monthly Excess Availability for the six (6) calendar months immediately preceding the date of any proposed investment permitted hereunder is equal to or greater than $75,000,000 and, after giving effect to the proposed investment permitted hereunder, Borrower has Excess Availability of not less than $75,000,000, then the maximum amount of such investment shall be $10,000,000, PROVIDED THAT, after giving effect to the proposed investment, the aggregate amount of all existing investments permitted under this Section 9.10(b)(iii) does not and will not exceed $10,000,000; and
(3) If the Monthly Excess Availability for the six (6) calendar months immediately preceding the date of any proposed investment permitted hereunder is equal to or greater than $100,000,000 and, after giving effect to the proposed investment permitted hereunder, Borrower has Excess Availability of not less than $100,000,000, then the maximum amount of such investment shall be $20,000,00, PROVIDED THAT, after giving effect to the proposed investment, the aggregate amount of all existing investments permitted under this Section 9.10(b)(iii) does not and will not exceed $20,000,000; For the purposes of calculating the Monthly Excess Availability as required under this Section 9.10(b)(iii), and not for any other Section of this Agreement, to the extent that the Borrower receives proceeds from an Equity Offering during any applicable six (6) month period as set forth above, said proceeds shall be deemed received by Borrower as of the first (1st) Business Day of such period;
(iv) Borrower shall be permitted to make investments in Valley Records Foreign Sales Corporation, PROVIDED THAT, the maximum aggregate amount of all investments permitted under this Section 9.10(b)(iv) shall not exceed $30,000 in any fiscal year of Borrower; and
(v) Borrower shall be permitted to guarantee the accounts payable owing to product manufacturers by Designated Vendors, PROVIDED THAT, the aggregate amount of all such guarantees shall not exceed at any given time $1,000,000.
Appears in 1 contract
Loans, Investments, Guarantees, Etc. Each Borrower shall not, and shall not permit any Subsidiary to, directly or indirectly, make any loans or advance money or property to any Person, or invest in (by capital contribution, dividend or otherwise) or purchase or own a futures contract or otherwise become liable for the purchase and sale of any currency, commodities or raw materials at a future date in the nature of a futures contract (which for this purpose shall not include the customary agreements entered into by Doe Run with its customers for the sale of Inventory in the ordinary course of business consistent with its current practices as of the date hereof), 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 agree or commit 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) short-term direct obligations of the United States Governmentin cash or Cash Equivalents so long as no Loans are outstanding, (ii) negotiable certificates of deposit issued by any bank satisfactory to Agent, payable to the order of the Borrower or to bearer which shall be pledged and delivered to Agent upon Agent, and (iii) commercial paper rated A1 or P1; provided, that, -------- ---- as to any of the foregoing, unless waived in writing by Agent, Borrower shall take such actions as are deemed necessary by Agent to perfect the security interest of Agent, for the ratable benefit of Lender, in such investments’s request;
(c) the existing investment of capital contributions or other investments by each Borrower in, or loans by each Borrower to, or any other payments by such Borrower in connection with the Capital Stock acquisition or formation of, any of Children's Productssuch Borrower’s Wholly-Owned Subsidiaries, Inc.;
which are not Borrowers (d“Non-Borrower Subsidiaries”), provided, that, (i) as of the date of such capital contribution or other investments, loans or payments, as the case may be, 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, (ii) in no event shall the total amount of any capital contributions, investments, loans or other payments by Borrowers to or in connection with any such Non-Borrower Subsidiaries outstanding at any time exceed $1,000,000 in the aggregate with respect to all of such Non-Borrower Subsidiaries which have not executed and delivered a security agreement to Agent as described in Section 7.2(b)(ii), calculated without giving effect to any whollywrite-owned ups, write-downs or write-offs thereof, but net of dividends or other distributions received by Borrowers from, or any repayment of any loans or advances made by, the respective Non-Borrower Subsidiary after the making of such capital contribution, investment or loan, (iii) the proceeds of accounts receivable and sales of inventory and goods of such Non-Borrower formed Subsidiary shall be paid to the Blocked Accounts, and (iv) to the extent required under Section 7.2 hereof, such Non-Borrower Subsidiary has executed and delivered to Agent such agreements, documents and instruments as are described in Section 7.2 hereof;
(d) investment prior to the date hereof, by Doe Run in Doe Run Cayman or its Subsidiaries and loans by Doe Run after the date hereof in accordance with Section 9.7 to Doe Run Cayman or loans by Borrower to employees of Borrower after the date hereofits Subsidiaries, provided, that, 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 or for the formation or acquisition of all such Subsidiaries, together with all loans by Borrower to employees of Borrower, and amounts paid in connection with any merger or consolidation permitted under Section 10.7 hereof, after the date hereof exceed $1,500,00010,000,000 in the aggregate outstanding at any time, (ii) at as of the time date of any each such capital contributionloan, loan or other payment and after giving effect thereto, no Event of Default Default, or act, condition or event which with notice and or passage of time or both would constitute an Event of Default, Default shall exist or have occurred, (iii) in the case of any loans by Borrower to a Subsidiary or employee, the indebtedness arising from such loans shall not be evidenced by any promissory note or other instrument, 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 50 the case of any loan by Borrower to employees of Borrower, such loans shall be for reasonable and necessary work-related travel or other ordinary business expenses to be incurred by such employees in connection with their work for Borrower or for the relocation of such employees in connection with their work for Borrower, or for any other purpose related in any manner to their employment by Borrower, and (v) as of the date of any each such capital contributionloan, loan or other paymentand after giving effect thereto, the daily average of the aggregate Excess Availability of Borrowers for the immediately preceding thirty (30) consecutive day period shall be not less than $2,500,00010,000,000, and as of the date of any such capital contribution, loan or other payment and after giving effect thereto, the aggregate Excess Availability of Borrowers shall be not less than $1,000,00010,000,000, andand no Obligations arising pursuant to the Supplemental Loan Credit Facility shall be then outstanding, (iv) Agent shall have received not less than three (3) Business Days prior written notice of the intention of Doe Run to make any such loan, (v) the proceeds of such loan shall only be used by Doe Run Cayman or its Subsidiaries for working capital in the ordinary course of business, (vi) Doe Run shall not, directly or indirectly, amend, modify, alter or change the terms of such loan or any agreement, documents or instrument related thereto, and (vii) Doe Run shall furnish to Agent all notices, demands or other materials in connection with such loans either received by Doe Run or on its behalf, promptly after the receipt thereof, or sent by Doe Run or on its behalf, concurrently with the sending thereof, as the case may be;
(e) capital contributions or other investments by Doe Run, in, or loans by Doe Run to, Doe Run Exploration S.A. (Proprietary) Ltd. (South Africa) after the date hereof, provided, that, (i) in no event shall the total amount of all such capital contributions, investments and loans exceed $1,000,000 in any fiscal year of Doe Run, and (ii) as of the date of each such capital contribution, other investment in or loan to, Doe Run Exploration S.A. (Proprietary) Ltd. (South Africa), 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) guarantees by any Wholly-Owned Subsidiary of each Borrower of the Obligations in favor of Agent;
(i) loans by any Non-Borrower Subsidiaries to any Borrower after the date hereof to the extent the Indebtedness of such Borrower as a result of such loans is permitted under Section 7.3(g) hereof, and (iii) loans by any Borrower to any other Borrower to the extent the Indebtedness of such Borrower to such Borrower as a result of such loans is permitted under Section 7.3(q) hereof;
(h) loans, payments, dividends, investments or distributions of any kind by Borrowers to DRA and Renco Group or by DRA to Renco Group to the extent permitted under Section 7.7 hereof;
(i) unsecured contingent obligations of each Borrower or any of its Wholly-Owned Subsidiaries evidenced by guarantees, performance bonds and surety bonds incurred in the ordinary course of business of such Borrower or such Wholly-Owned Subsidiary to the extent constituting Indebtedness permitted under Section 7.3;
(j) guarantees by each Borrower or any Wholly-Owned Subsidiary of such Borrower of Indebtedness of such Borrower or Subsidiary permitted under Section 7.3 hereof;
(k) loans and advances to employees, officers and directors of Borrowers in an aggregate principal amount not to exceed $500,000 at any time outstanding;
(l) purchases of raw materials by a Borrower or its Subsidiaries in the ordinary course of business and consistent with current practices as of the date hereof (including pursuant to forward purchase agreements so long as reasonably related to such Borrower’s or its respective Subsidiary’s anticipated needs for such raw material in its production process, and so long as such forward purchase agreements are not speculative in nature and do not extend for a period longer than twelve (12) months after the date thereof);
(m) investments or other Indebtedness which may be deemed to exist as a result of Interest Rate Protection Obligations or Hedging Agreements, to the extent Indebtedness in connection with such arrangements is permitted under Section 7.3 hereof;
(n) the guarantee by the Existing Secured Note Guarantors of the Indebtedness of Doe Run evidenced by the Existing Unsecured Notes to the extent such Indebtedness of Doe Run is permitted under Section 7.3 hereof;
(o) the other existing loans, advances and guarantees by each Borrower or its Subsidiaries outstanding as of the date hereof as set forth on Schedule 10.10 hereto7.5 hereto not otherwise permitted above; provided, that, as to such loans, advances and guarantees, (i) such Borrower or its Subsidiary 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 and (ii) such Borrower and Subsidiary shall furnish to Agent all notices, demands or other materials in connection with such loans, advances or guarantees either received by Borrower or Subsidiary or on its behalf, promptly after the receipt thereof, or sent by such Borrower or Subsidiary or on its behalf, concurrently with the sending thereof, as the case may be;
(p) the guarantee by Fabricated Products and the other Existing Secured Note Guarantors of the Indebtedness of Doe Run evidenced by the Existing Notes to the extent such Indebtedness is permitted under Section 7.3 hereof;
(q) the capital contribution or other investment by Doe Run in Buick Recycling after the date hereof to the extent permitted by Section 7.6(c) hereof;
(r) the guarantee by any Subsidiaries of Doe Run of the Term Loan Debt to the extent such Indebtedness is permitted under Section 7.3 (m) hereof;
(s) the guarantee by any Subsidiaries of Doe Run of the Indebtedness evidenced by the New Secured Notes to the extent such Indebtedness is permitted under Section 7.3 (n) hereof;
(t) the purchase by Doe Run of the New Warrants to the extent permitted by Section 7.3(o) hereof;
(u) loans by Doe Run to Doe Run Peru prior to the date hereof evidenced by the Doe Run Peru Intercompany Note (as in effect on the date hereof), provided, that, (i) in no event shall the total amount of all such loans exceed $139,062,500 in the aggregate outstanding at any time (exclusive of the amounts of such loans permitted under Section 7.5(d) hereof), (ii) Agent shall have received a true correct and complete copy of the Doe Run Peru Intercompany Note (as in effect on the date hereof), (iii) the proceeds of such loan shall have been used by Doe Run Peru to pay in full the existing indebtedness of Doe Run Peru to Banco de Credito pursuant to the Prior Banco de Credito Agreements, (iv) Doe Run shall not, directly or indirectly, amend, modify, alter or change the terms of such loan or any agreement, documents or instrument related thereto (including the Doe Run Peru Promissory Note), and (v) Doe Run shall furnish to Agent all notices, demands or other materials in connection with such loans either received by Doe Run or on its behalf, promptly after the receipt thereof, or sent by Doe Run or on its behalf, concurrently with the sending thereof, as the case may be; and
(v) existing investment by Doe Run in Compass as of the date hereof.
Appears in 1 contract
Samples: Loan and Security Agreement (Doe Run Resources Corp)
Loans, Investments, Guarantees, Etc. Borrower and each Guarantor shall not, and shall not permit any Subsidiary to, directly or indirectly, make any loans or advance money or property to any person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the Capital Stock or Indebtedness or all or a substantial part of the assets or property of any person, or guarantee, assume, endorse, or otherwise become responsible for (directly or indirectly) the Indebtedness, performance, obligations or dividends of any Person or hold any cash or Cash Equivalents or agree to do any of the foregoing, except:
(a) the guarantees by Guarantors and any other Subsidiary of Borrower of the Obligations in favor of Lender;
(b) the endorsement of instruments for collection or deposit in the ordinary course of business;
(bc) investments in: (i) short-term direct obligations of the United States Government, (ii) negotiable certificates of deposit issued by any bank satisfactory to Agent, payable to the order of the Borrower in cash or to bearer Cash Equivalents so long as there are no Loans outstanding and such investments are pledged and delivered to Agent, and (iii) commercial paper rated A1 or P1; provided, that, -------- ---- as to any of the foregoing, unless waived in writing by Agent, Borrower shall take such actions as are deemed necessary by Agent to perfect the security interest of Agent, for the ratable benefit of Lender promptly upon Lender, in such investments's request;
(cd) the existing equity investment of Borrower in the Capital Stock of Children's Productseach of HF Rehab, Inc.HF Rehab Iowa, Fitness Centers and Sports Therapy, and the existing equity investment of HF Rehab in the Capital Stock of TPC and the existing equity investment of HF Rehab Iowa in the Capital Stock of each of Duffy, Medlink and Medlink Services, in each case as of the date herxxx;
(de) capital contributions, loans or other payments the purchase by Borrower or any Guarantor of all of the issued and outstanding shares of Capital Stock of any Person or all or a substantial part of the assets or property of any Person or all or a substantial part of the assets of property of any operating division or business of any Person, if as to any wholly-owned Subsidiary of Borrower formed after the date hereof in accordance with Section 9.7 or loans by Borrower to employees of Borrower after the date hereof, provided, that, each such purchase each of the following conditions is satisfied as -------- ---- determined by Agent: Lender in good faith promptly upon receipt of the applicable information:
(i) Lender shall have received not less than thirty (30) days prior written notice of the intention of Borrower or such Guarantor, as the case may be, to make such purchase, which notice shall set forth in no event shall reasonable detail satisfactory to Lender, the total amount of capital contributionsparties to such purchase, loans or other amounts the consideration to be paid by Borrower to or for the formation purchase of such Capital Stock or acquisition assets, the terms and manner of all payment of such Subsidiariesconsideration, together the Capital Stock or assets to be purchased, the liabilities being assumed pursuant to such purchase and such other information with all loans by Borrower to employees of Borrower, and amounts paid in connection with any merger or consolidation permitted under Section 10.7 hereof, exceed $1,500,000, respect thereto as Lender may request,
(ii) at as of the time date of any such capital contributionpurchase, loan or other payment and after giving effect thereto, no Event of Default Default, or act, condition or event which with notice and or passage of time or both would constitute an Event of Default, shall exist or have occurred, occurred and be continuing,
(iii) such purchase shall be permitted under the terms of all Material Contracts,
(iv) such purchase shall be on commercially reasonable prices and terms and in a bona fide arms' length transaction,
(v) Lender shall have received true, correct and complete copies of all agreements, documents and instruments relating to such acquisition, as duly authorized, executed and delivered by the parties thereto,
(vi) the restrictions applicable to Borrower, any Guarantor and their respective assets included in the agreements, documents and instruments relating to such purchase shall be acceptable in good faith to Lender,
(vii) Borrower and such Guarantor shall, immediately before and immediately after giving effect to such transaction or series of transactions, have a Consolidated Net Worth (including, without limitation, any Indebtedness incurred or anticipated to be incurred in connection with or in respect of such transaction or series of transactions) equal to or greater than the Consolidated Net Worth it had immediately prior to such transaction or series of transactions,
(viii) Borrower and Guarantors shall not become obligated with respect to any Indebtedness, nor any of their property become subject to any security interest or lien, pursuant to such acquisition unless Borrower and Guarantors could incur such Indebtedness or create such security interest or lien hereunder or under the other Financing Agreements (and including purchase money liens or security interests in computer equipment and related software permitted under Section 8.5 hereof),
(ix) in the case of the purchase of any Capital Stock of any Person, Borrower or such Guarantor shall, and shall cause such Person, to comply with Section 8.2 hereof,
(x) the total consideration paid or payable by Borrower or such Guarantor to purchase the Capital Stock or assets of such Person shall not exceed $2,000,000 (inclusive of any deferred portion thereof which shall be calculated in a manner acceptable to Lender),
(xi) the total cash portion of the consideration or paid or payable by Borrower or such Guarantor to purchase the Capital Stock or assets of such Person shall not exceed $750,000,
(xii) as of the date of such payment in cash or other immediately available funds and after giving effect thereto, Excess Availability shall be not less than the amount equal to ten percent (10%) of the then outstanding Obligations after giving effect on a pro forma basis to Loans made in connection with such acquisition and other Loans made or requested on the date of such payment in cash or other immediately available funds,
(xiii) the EBITDA of the Person whose assets or Capital Stock are being acquired shall be not less than fifteen (15%) percent of the actual total revenues of such Person for the immediately preceding four (4) fiscal quarters of such Person prior to the effective date of such acquisition (and in the case of the acquisition of assets, to the extent attributable to such assets),
(xiv) Lender shall have received, in form and substance satisfactory to Lender, (A) evidence that Lender has valid and perfected security interests in and liens upon the assets purchased (in the case of the acquisition of assets, or upon the assets of the Subsidiary acquired in the case of the acquisition of Capital Stock) consisting of the types and categories of assets which constitute Collateral hereunder, (B) all Collateral Access Agreements and other consents, waivers, acknowledgments and other agreements from third persons which Lender may deem necessary or desirable in order to permit, protect and perfect its security interests in and liens upon the assets purchased (in the case of the acquisition of assets, or upon the assets of the Subsidiary acquired in the case of the acquisition of Capital Stock), (C) the agreement of the seller consenting to the collateral assignment by Borrower or such Guarantor of all rights and remedies and claims for damages of Borrower or such Guarantor relating to the Collateral (including, without limitation, any bulk sales indemnification) under the agreements, documents and instruments relating to such acquisition and (D) such other agreements, documents and instruments as Lender may request in connection therewith,
(xv) Lender shall have received a certificate executed by the chief financial officer of Borrower (A) stating that 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 or would exist or occur after giving effect to such acquisition and (B) showing (in reasonable detail and with appropriate calculations and computations in all respects satisfactory to Lender) compliance for the succeeding four (4) fiscal quarters (the fiscal quarter in which such acquisition occurs being the first fiscal quarter of such period) with the covenants set forth in Sections 8.10, 8.11 and 8.12 hereof on a prospective pro forma basis (after giving effect to such acquisition and all transactions related thereto);
(f) loans by any Subsidiary of Borrower to Borrower to the extent the Indebtedness arising from such loans is permitted under Section 8.6 above;
(g) loans or advances by Borrower to a Subsidiary or employeeany Guarantor; provided, that, the indebtedness Indebtedness of each Guarantor to Borrower arising from pursuant to such loans shall not be evidenced by any a promissory note or other instrument, unless the original of any such note or other instrument is delivered to Agent, duly and validly endorsed and assigned by Borrower or such Guarantor payable to the payee to Agent order of Lender, in a form manner satisfactory to Lender and manner acceptable as so endorsed, delivered to, and held by, Lender as part of the Collateral;
(h) obligations or Capital Stock issued to Agent, Borrower or any Guarantor by any Person (ivor the representative of such Person) in 50 respect of Indebtedness of such Person owing to Borrower or such Guarantor in connection with the case 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 loan 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 or such Guarantor as Lender may request;
(i) obligations of account debtors to Borrower or any Guarantor arising from Accounts which are past due evidenced by a promissory note made by such account debtor payable to Borrower or such Guarantor; provided, that, promptly upon the receipt of the original of any such promissory note by Borrower or such Guarantor, such promissory note shall be endorsed to the order of Lender, in a manner satisfactory to Lender and as so endorsed, delivered to, and held by, Lender as part of the Collateral;
(j) loans and advances by Borrower, any Guarantor or Subsidiary to employees of Borrower, such loans shall be for reasonable Guarantor or Subsidiary not to exceed the principal amount of $25,000 in the aggregate at any time outstanding for: (i) reasonably and necessary work-related travel or other ordinary business expenses to be incurred by such employees in connection with their work for Borrower or for the relocation of such employees employee in connection with their work for Borrower, such Guarantor or for any other purpose related in any manner to their employment by Borrower, Subsidiary and (vii) as reasonable and necessary relocation expenses of the date of any such capital contribution, loan or other payment, the daily average of the Excess Availability employees (including home mortgage financing for the immediately preceding thirty (30) consecutive day period shall be not less than $2,500,000, 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 $1,000,000, andrelocated employees);
(ek) the existing loans, advances and guarantees by Borrower Borrower, any Guarantor or Subsidiary outstanding as of the date hereof as set forth on Schedule 10.10 8.7 hereto; provided, that, as to such loans, advances and guarantees, (i) Borrower and such Guarantor or Subsidiary 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 and (ii) Borrower or such Guarantor or Subsidiary shall furnish to Agent Lender all notices, demands or other materials in connection with such loans, advances or guarantees either received by Borrower Borrower, or such Guarantor or Subsidiary, or on its behalf, promptly after the receipt thereof, or sent by Borrower Borrower, such Guarantor or Subsidiary, or on its behalf, concurrently with the sending thereof, as the case may be.
Appears in 1 contract
Samples: Loan and Security Agreement (Health Fitness Physical Therapy Inc)
Loans, Investments, Guarantees, Etc. No Borrower shall, directly or indirectly, make any loans or advance money or property to any Person, or invest in (by capital contribution, dividend or otherwise) or purchase or repurchase the 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 guarantee of another Borrower's Obligations hereunder to the extent permitted under Section 13.11 hereof;
(b) loans or advances of money or property to another Borrower or an Obligor; provided, however, such loans or advances shall be (i) disclosed in the financial statements provided to Lender pursuant to Section 9.6 hereof, (ii) limited to amounts which would not render the Borrower or Obligor receiving such loans or advances insolvent, unable to pay its debts as they mature or to have insufficient capital to carry on its business, (iii) on a basis subordinate to all other indebtedness of the other Borrower or Obligor receiving such loans or advances; (iv) with respect to advances to Holbxxxx, Xxckers Japan, Deckers Europe, Phillipsburg and Picante, limited to an aggregate amount not to exceed Thirty Million Dollars ($30,000,000) at any time; provided, further, however, after giving effect to such loans or advances of money or property, no Event of Default, or event which with notice or passage of 41 47 time or both, would constitute an Event of Default, shall exist or have occurred and be continuing;
(c) the endorsement of instruments for collection or deposit in the ordinary course of its business;
(bd) investments in: (i) short-term direct obligations of the United States Government, ; (ii) negotiable certificates of deposit issued by any bank satisfactory to AgentLender, payable to the order of the such Borrower or to bearer and delivered to Agent, Lender; and (iii) commercial paper rated A1 or P1; provided, that, -------- ---- as to any of the foregoing, unless waived in writing by AgentLender, each Borrower shall take such actions as are deemed necessary by Agent Lender to perfect the security interest of Agent, for the ratable benefit of Lender, Lender in such investments;
(ce) the existing investment repurchase of Borrower in the Capital Stock of Children's Products, Inc.;
(d) capital contributions, loans or other payments by Borrower to any wholly-owned Subsidiary of Borrower formed after the date hereof in accordance with Section 9.7 or loans by Borrower to employees of Borrower after the date hereofits own stock, provided, that, each of the following conditions is satisfied as -------- ---- determined by Agent: after giving effect to such repurchase, (i) in no event shall the total amount of capital contributions, loans or other amounts paid by Borrower to or for the formation or acquisition of all such Subsidiaries, together with all loans by Borrower to employees of Borrower, and amounts paid in connection with any merger or consolidation permitted under Section 10.7 hereof, exceed $1,500,000, (ii) at the time of any such capital contribution, loan or other payment and after giving effect thereto, no Event of Default or actDefault, condition or event which with notice and or passage of time or both both, would constitute an Event of Default, shall exist or have occurred, (iii) in the case of any loans by Borrower to a Subsidiary or employee, the indebtedness arising from such loans shall not occurred and be evidenced by any promissory note or other instrument, 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 50 the case of any loan by Borrower to employees of Borrower, such loans shall be for reasonable and necessary work-related travel or other ordinary business expenses to be incurred by such employees in connection with their work for Borrower or for the relocation of such employees in connection with their work for Borrower, or for any other purpose related in any manner to their employment by Borrower, and (v) 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 $2,500,000, 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 $1,000,000, and
(e) the existing loans, advances and guarantees by Borrower outstanding as of the date hereof as set forth on Schedule 10.10 hereto; provided, that, as to such loans, advances and guarantees, (i) Borrower 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 continuing and (ii) Borrower Excess Availability shall furnish to Agent all notices, demands or other materials not be less than One Hundred Thousand Dollars ($100,000) in connection with the aggregate; and
(f) the guarantees set forth in the Information Certificate of such loans, advances or guarantees either received by Borrower or on its behalf, promptly after the receipt thereof, or sent by Borrower or on its behalf, concurrently with the sending thereof, as the case may beBorrower.
Appears in 1 contract
