Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrowers will not, and will not permit any of their respective Restricted Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its property or assets (other than the liquidation of Cash Equivalents in the ordinary course of business), or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment, furniture, fixtures, and intangible assets in the ordinary course of business) of any Person, except that: (i) Capital Expenditures by the Borrowers and their Restricted Subsidiaries shall be permitted to the extent not in violation of Section 9.07; (ii) each of the Borrowers and their Restricted Subsidiaries may (x) in the ordinary course of business, sell, lease or otherwise dispose of any assets which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer useful in the conduct of such Person's business, (y) sell, lease or otherwise dispose of any other assets, provided that each such sale, lease or disposition shall be for fair market value (other than with respect to sales, leases or dispositions in an aggregate amount not to exceed $100,000 per calendar year) and at least 75% of the consideration therefor shall be in the form of cash, and provided further, that (A) except as provided in following clause (B), the aggregate Net Sale Proceeds of all assets subject to sales or other dispositions pursuant to clauses (x) and (y) shall not exceed $15,000,000 in the aggregate in any Fiscal Year and (B) in addition to sales effected pursuant to preceding clause (A), additional assets may be sold pursuant to this Section 9.02(ii) so long as at least 90% of the aggregate consideration for any such asset sale shall be in the form of cash and so long as the aggregate Net Sale Proceeds of all assets sold pursuant to this clause (B) after the Second Restatement Effective Date do not exceed $75,000,000, and (z) enter into transactions permitted under Section 9.01(vi); (iii) Investments may be made to the extent permitted by Section 9.05; (iv) each of the Borrowers and their Restricted Subsidiaries may lease (as lessee) real or personal property (so long as any such lease does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04); (v) each of the Borrowers and their Restricted Subsidiaries may make sales or transfers of inventory (x) in the ordinary course of business or (y) to any other Borrower or any Domestic Wholly-Owned Subsidiary of Furniture Brands which is a Subsidiary Guarantor; (vi) the Borrowers and their respective Restricted Subsidiaries shall be permitted to make Permitted Acquisitions so long as (A) such Permitted Acquisitions are effected in accordance with the requirements of Section 8.14, (B) after giving effect to any Permitted Acquisition, the aggregate amount paid (including for the purpose of this clause (vi) all cash consideration paid, the amount of all Indebtedness directly issued as consideration, the face amount of all Permitted Acquired Debt incurred or assumed and the fair market value of any merger consideration, but excluding the fair market value of all Furniture Brands Common Stock and/or Qualified Preferred Stock issued as consideration therefor, in each case in connection with such Permitted Acquisition) by the Borrowers and their Restricted Subsidiaries in connection with such Permitted Acquisition shall not exceed the sum of (x) the Available Basket Amount at such time (after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Permitted Acquisition) and (y) the Available Debt Proceeds Amount at such time (after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Permitted Acquisition), and (C) with respect to each Permitted Acquisition, no Default or Event of Default is in existence at the time of the consummation of such Permitted Acquisition or would exist after giving effect thereto; (vii) Furniture Brands may sell or otherwise dispose of any shares of capital stock of any Unrestricted Subsidiaries owned by it; (viii) so long as no Default or Event of Default then exists or would result therefrom, the Borrowers or any Domestic Wholly-Owned Subsidiary which is a Restricted Subsidiary of Furniture Brands may be merged into or consolidated with any Borrower (so long as such Borrower is the surviving corporation of such merger) or any other Domestic Wholly-Owned Subsidiary which is a Restricted Subsidiary of the Borrowers; (ix) the Borrowers and their respective Restricted Subsidiaries shall be permitted to merge with another Person (so long as such Borrower or Restricted Subsidiary is the surviving corporation), so long as such merger is used to effect a Permitted Acquisition in compliance with Section 9.02(vi); and (x) the Borrowers may sell or otherwise dispose of Excluded Assets. To the extent the Required Banks (or, the Required Supermajority Banks to the extent required by Section 13.12(a)) waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02, such Collateral (unless sold to Furniture Brands or a Subsidiary of Furniture Brands) shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Furniture Brands International Inc)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrowers Each of Holdings and the Company will not, and the Company will not permit any of their respective Restricted its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its property or assets (other than the liquidation of Cash Equivalents in the ordinary course of business)property, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment, furniture, fixtures, equipment and intangible assets in the ordinary course of businessbusiness or reinvestments in assets) of any PersonPerson if permitted hereby and in the Senior Credit Agreement (or agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures by the Borrowers Company and their Restricted its Subsidiaries shall be permitted to the extent not in violation of Section 9.0710.07;
(ii) each of the Borrowers Company and their Restricted its Subsidiaries may (x) in the ordinary course of business, sell, lease or otherwise dispose of any assets property which, in the reasonable judgment of such Person, are is obsolete, worn out or otherwise no longer useful in the conduct of such Person's business, business and (y) sell, lease or otherwise dispose of any other assets, property; provided that each such sale, lease or disposition shall be for fair market value (other than with respect to sales, leases or dispositions in an aggregate amount not to exceed $100,000 per calendar year) and at least 75% of the consideration therefor shall be in the form of cash, and provided further, that (A) except as provided in following clause (B), the aggregate Net Sale Cash Proceeds of all assets subject to sales or other dispositions pursuant to clauses this sub-clause (x) and (yii)(y) shall not exceed $15,000,000 1,000,000 in the aggregate in any Fiscal Year and (B) in addition to sales effected pursuant to preceding clause (A), additional assets may be sold pursuant to this Section 9.02(ii) so long as at least 90% four consecutive fiscal quarters of the aggregate consideration for any such asset sale shall be in the form of cash and so long as the aggregate Net Sale Proceeds of all assets sold pursuant to this clause (B) after the Second Restatement Effective Date do not exceed $75,000,000, and (z) enter into transactions permitted under Section 9.01(vi)Company;
(iii) Investments investments may be made to the extent permitted by Section 9.0510.05;
(iv) each of the Borrowers Company and their Restricted its Subsidiaries may lease (as lessee) real or personal property in the ordinary course of business (so long as any such lease does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.0410.01 (vi));
(v) each of the Borrowers Company and their Restricted its Subsidiaries may make sales or transfers of inventory (x) in the ordinary course of business and that are consistent with past practices;
(vi) the Company and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, overdue accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof consistent with customary industry practice (yand not as part of any bulk sale);
(vii) to any other Borrower the Company or any Domestic Wholly-Owned Subsidiary of Furniture Brands which is a Subsidiary Guarantor;
(vi) the Borrowers and their respective Restricted Subsidiaries shall be permitted Company may transfer assets or lease to make Permitted Acquisitions so long as (A) such Permitted Acquisitions are effected in accordance with or acquire or lease assets from the requirements of Section 8.14, (B) after giving effect to any Permitted Acquisition, the aggregate amount paid (including for the purpose of this clause (vi) all cash consideration paid, the amount of all Indebtedness directly issued as consideration, the face amount of all Permitted Acquired Debt incurred or assumed and the fair market value of any merger consideration, but excluding the fair market value of all Furniture Brands Common Stock and/or Qualified Preferred Stock issued as consideration therefor, in each case in connection with such Permitted Acquisition) by the Borrowers and their Restricted Subsidiaries in connection with such Permitted Acquisition shall not exceed the sum of (x) the Available Basket Amount at such time (after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Permitted Acquisition) and (y) the Available Debt Proceeds Amount at such time (after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Permitted Acquisition), and (C) with respect to each Permitted Acquisition, no Default or Event of Default is in existence at the time of the consummation of such Permitted Acquisition or would exist after giving effect thereto;
(vii) Furniture Brands may sell or otherwise dispose of any shares of capital stock of any Unrestricted Subsidiaries owned by it;
(viii) so long as no Default or Event of Default then exists or would result therefrom, the Borrowers or any Domestic Wholly-Owned Subsidiary which is a Restricted Subsidiary of Furniture Brands may be merged into or consolidated with any Borrower (so long as such Borrower is the surviving corporation of such merger) Company or any other Domestic Wholly-Owned Subsidiary which is a Restricted or any Domestic Wholly-Owned Subsidiary may be merged into the Company or any other Domestic Wholly-Owned Subsidiary of the BorrowersCompany;
(viii) Permitted Acquisitions shall be permitted;
(ix) any Restricted Party may sell or exchange specific items of equipment in the Borrowers and their respective Restricted Subsidiaries shall be permitted to merge with another Person (ordinary course of business, so long as the purpose of each such Borrower sale or exchange is to acquire (and results within 270 days of such sale or exchange in the acquisition of) replacement items of equipment which are, in the reasonable business judgment of such Restricted Party, the functional equivalent of the item of equipment so sold or exchanged;
(x) the Company and its Domestic Subsidiaries may transfer assets in the ordinary course of business to Foreign Subsidiaries of the Company having a fair market value (as determined in good faith by the Board of Directors or senior management of the Company) not to exceed $1.0 million in any fiscal year of the Company,
(xi) the assets of any Foreign Subsidiary of the Company may be transferred to the Company or any other Subsidiary of the Company and any Foreign Subsidiary may be merged into the Company or any of its Subsidiaries so long as the Company or such Subsidiary is the surviving corporation)entity;
(xii) the disposition of Cash Equivalents, so long as such merger is used Foreign Cash Equivalents and other investments to effect a Permitted Acquisition in compliance with the extent permitted under Section 9.02(vi10.05(ii); and
(xxiii) the Borrowers Company may sell FTS Systems, Inc., formerly known as Kinetics Thermal Systems, Inc. (such transaction, the "KTS Sale"); provided that the Net Cash Proceeds to be received as a result of the KTS Sale shall not be less than $5.0 million and either (a) if the obligations under any indemnity arrangements with the purchaser of FTS Systems, Inc. in the KTS Sale do not expose any seller thereof to liability in excess of $1.0 million, the net proceeds of such sale are used by the Company for working capital and general operations, or otherwise dispose (b) if the foregoing indemnity arrangements are in excess of Excluded Assetssuch amount, then all of the net proceeds of such sale shall be used to repay and permanently reduce the Indebtedness of the Company, prior to any other use thereof. To the extent the Required Banks (or, the Required Supermajority Banks to the extent required by Section 13.12(a)) Holders waive the provisions of this Section 9.02 10.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.0210.02, such Collateral (unless sold to Furniture Brands or a Subsidiary of Furniture Brandsany Restricted Party) shall be sold free and clear of the Liens created by the Security DocumentsDocuments (but the Liens created by the Security Documents shall attach to the proceeds of such sale), and the Administrative Agent and Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing. To the extent that any proceeds from a transaction described in this Section 10.02 are used to pay down Revolving Loans (under and as defined in the Senior Credit Agreement), the Company shall simultaneously cause the Revolving Loan Commitments (under and as defined in the Senior Credit Agreement) to be reduced by an amount equal to such payment, unless and to the extent (a) no reduction in Revolving Loan Commitments is required under (and as defined in) the Senior Credit Agreement, (b) with respect to no more than $10,000,000 of net cash proceeds from the sale of assets in any consecutive four fiscal quarters of the Company, no Default or Event of Default exists at the time of the respective Asset Sale and the Company has (A) delivered an officer's certificate to the Agent on or prior to such date stating that such net cash proceeds shall be used to purchase assets (including equity interests in another Person) useful in the business of the Company and permitted under this Section 10.02 no later than 270 days following the date of such sale of assets (which certificate shall set forth the estimates of the proceeds to be so expended) and (B) deposited any such net cash proceeds in excess of $5,000,000 in respect of Collateral into the Collateral Account, and (c) if all or any portion of such net cash proceeds, for which amount the Revolving Loan Commitments have not been reduced pursuant to the preceding clause (b), are not so reinvested in assets within such 270-day period, such reduction in the Revolving Loan Commitments (under and as defined in the Senior Credit Agreement) shall be made as provided above in this Section 10.02 without regard to the preceding clause (b).
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrowers Holdings will not, and will not permit any of their respective Restricted its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its property or assets (other than the liquidation of Cash Equivalents in the ordinary course of business)assets, or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment, furniture, fixtures, equipment and intangible assets assets, including property acquired by way of trade or barter agreements, in the ordinary course of business) of any Person, except that:
(i) Capital Expenditures made by the Borrowers Borrower and their Restricted its Subsidiaries shall be permitted to the extent not in violation of Section 9.07;
(ii) each of the Borrowers Borrower and their Restricted its Subsidiaries may (x) in the ordinary course of business, sell, lease or otherwise dispose of any assets which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer useful in the conduct of such Person's business, (y) sell, lease or otherwise dispose of any other assets, provided that each such sale, lease or disposition shall be for fair market value (other than with respect to sales, leases or dispositions in an aggregate amount not to exceed $100,000 per calendar year) and at least 75% of the consideration therefor shall be in the form of cash, and provided further, PROVIDED that (Aa) except as provided in following clause (B), the aggregate Net Sale Proceeds of all assets subject to sales or other dispositions pursuant to clauses this clause (x) and (yii) shall not exceed $15,000,000 in any fiscal year of the aggregate in any Fiscal Year Borrower, (b) each such disposition is for fair market value and (Bc) in addition to sales effected pursuant to preceding clause (A), additional assets may be sold pursuant to this Section 9.02(ii) so long as at least 9075% of the aggregate consideration for any such asset sale shall be received in the form respect thereof is cash (or Cash Equivalents) (including assumption of cash and so long as the aggregate Net Sale Proceeds of all assets sold pursuant to this clause (B) after the Second Restatement Effective Date do not exceed $75,000,000, and (z) enter into transactions permitted under Section 9.01(viIndebtedness);
(iii) Investments in addition to sales, leases, transfers, conveyances or dispositions otherwise permitted, each of the Borrower and its Subsidiaries may sell, lease, transfer, convey or otherwise dispose of property, equipment or other assets that is (a) obsolete or worn out or (b) no longer useful or necessary in the operation of the business of such Person;
(iv) investments may be made to the extent permitted by Section 9.05;
(ivv) each of the Borrowers Borrower and their Restricted its Subsidiaries may lease (as lessee) real or personal property in the ordinary course of business (so long as any such lease does not create a Capitalized Lease Obligation except to the extent not otherwise permitted by Section 9.049.04(v));
(vvi) each of the Borrowers Borrower and their Restricted its Subsidiaries may make sales sales, conveyances, dispositions or other transfers of goods, equipment and inventory (xincluding pursuant to barter or trade transactions) in the ordinary course of business or (y) to any other Borrower or any Domestic Wholly-Owned Subsidiary of Furniture Brands which is a Subsidiary Guarantor;
(vi) the Borrowers and their respective Restricted Subsidiaries shall be permitted to make Permitted Acquisitions so long as (A) such Permitted Acquisitions are effected in accordance with the requirements of Section 8.14, (B) after giving effect to any Permitted Acquisition, the aggregate amount paid (including for the purpose of this clause (vi) all cash consideration paid, the amount of all Indebtedness directly issued as consideration, the face amount of all Permitted Acquired Debt incurred or assumed and the fair market value of any merger consideration, but excluding the fair market value of all Furniture Brands Common Stock and/or Qualified Preferred Stock issued as consideration therefor, in each case in connection with such Permitted Acquisition) by the Borrowers and their Restricted Subsidiaries in connection with such Permitted Acquisition shall not exceed the sum of (x) the Available Basket Amount at such time (after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Permitted Acquisition) and (y) the Available Debt Proceeds Amount at such time (after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Permitted Acquisition), and (C) with respect to each Permitted Acquisition, no Default or Event of Default is in existence at the time of the consummation of such Permitted Acquisition or would exist after giving effect theretobusiness;
(vii) Furniture Brands may sell licenses or otherwise dispose sublicenses by the Borrower and its Subsidiaries of software, trademarks, patents and other intellectual property in the ordinary course of business and which do not materially interfere with the business of the Borrower or any shares of capital stock of any Unrestricted Subsidiaries owned by itSubsidiary;
(viii) so long as no Default or Event of Default then exists or would result therefrom, the Borrowers Borrower or any Domestic Wholly-Owned Subsidiary which is a Restricted Guarantor may transfer assets to or lease assets to or acquire or lease assets from the Borrower or any other Subsidiary of Furniture Brands may be merged into or consolidated with any Borrower Guarantor (so long as the security interests granted pursuant to the Security Documents is not, in the reasonable judgment of the Collateral Agent, adversely affected thereby) or any Subsidiary of the Borrower may be merged or consolidated with or into, or be liquidated into, the Borrower or any Subsidiary Guarantor (so long as the Borrower or such Borrower Subsidiary Guarantor is the surviving corporation of such merger) or any other Domestic Wholly-Owned Subsidiary which is a Restricted Subsidiary of the Borrowerscorporation);
(ix) the Borrowers any Foreign Subsidiary may be merged with and their respective Restricted Subsidiaries shall into, or be permitted to merge with another Person (so long as such Borrower dissolved or Restricted Subsidiary is the surviving corporation)liquidated into, so long as such merger is used to effect a Permitted Acquisition in compliance with Section 9.02(vi); andor transfer any of its assets to, any other Foreign Subsidiary;
(x) the Borrowers Transaction shall be permitted;
(xi) the Borrower and its Subsidiaries may sell or otherwise dispose discount, in each case without recourse (except for customary indemnities, representations, warranties and agreements) and in the ordinary course of Excluded Assets. business, accounts receivable arising in the ordinary course of business (x) which are overdue or (y) which the Borrower may reasonably determine are difficult to collect, but only in connection with the compromise or collection thereof (and not as part of any bulk sale or financing of receivables);
(xii) transfers of condemned property to the respective governmental authority or agency that have condemned same (whether by deed in lieu of condemnation or otherwise), and transfers of properties that have been subject to a casualty to the respective insurer of such property or its designee as part of an insurance settlement, so long as the proceeds thereof are applied as required by Section 4.02(A)(i);
(xiii) the Borrower and its Subsidiaries may acquire the capital stock (or other equity interests) or assets of any Person which is merged into, or becomes a Domestic Subsidiary of, the Borrower or such Subsidiary so long as the aggregate amount expended pursuant to this clause (xiii) does not exceed $10,000,000; and
(xiv) in addition to the acquisition permitted pursuant to preceding clause (xiii), the Borrower and its Subsidiaries may acquire the capital stock (or other equity interests) or assets of any Person which is merged into, or becomes a Domestic Subsidiary of, the Borrower or such Subsidiary with (a) the reinvestment of Excess Cash Flow for the relevant Excess Cash Payment Period to the extent (x) not required to be applied to repay the Loans pursuant to Section 4.02(A)(h), (y) not used to make Capital Expenditures pursuant to Section 9.07(c)(iii) and (z) not used to make investments pursuant to Section 9.05(ix); To the extent the Required Banks (or, the Required Supermajority Banks to the extent required by Section 13.12(a)) waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.029.02 (other than clause (vii) thereof), such Collateral (unless sold to Furniture Brands or a Subsidiary of Furniture Brands) shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing and shall, at the request of the Borrower, take any such actions reasonably appropriate to effect the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrowers Company will not, and will not permit any of their respective Restricted its Subsidiaries or Material Joint Ventures to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or C/M 11752.0000 414856.1 consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its property or assets (other than the liquidation of Cash Equivalents in the ordinary course of business)assets, or enter into any sale-sale leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment, furniture, fixtures, materials and intangible assets equipment in the ordinary course of business) of any Person, except that:
(i) Capital Expenditures (including payments in respect of Capitalized Lease Obligations) by the Borrowers Company and their Restricted its Subsidiaries and Material Joint Ventures shall be permitted to the extent not in violation of Section 9.07;10.07:
(ii) the Company and each of the Borrowers its Subsidiaries and their Restricted Subsidiaries Material Joint Ventures may (x) in the ordinary course of business, sell, lease (as lessor) or otherwise dispose of any assets equipment and materials which, in the reasonable judgment opinion of such Person, are obsolete, worn out uneconomic or otherwise no longer useful in the conduct of such Person's business, provided that (yx) sell, lease except to the extent the respective equipment or otherwise dispose materials are transferred in like-kind exchanges and/or trade-in-value is received on purchases of any other like-kind assets, provided that each such sale, lease or disposition shall be for fair market value (other than with respect to sales, leases or dispositions in an aggregate amount not to exceed $100,000 per calendar year) and at least 7580% of the consideration therefor (taking the amount of cash and the fair market value of any non-cash consideration or, if greater, the principal amount of any non-cash consideration) shall be in the form of cash, and provided further, that (Ay) except as provided in following clause (B), the aggregate Net Sale Cash Proceeds of all assets subject to sales sold or other dispositions otherwise disposed of pursuant to clauses this clause (x) and (yii) shall not exceed $15,000,000 in the aggregate 2,000,000 in any Fiscal Year fiscal year of the Company and (Bz) in addition to sales effected pursuant to preceding clause (A), additional assets may be sold pursuant to this Section 9.02(ii) so long as at least 90% of the aggregate consideration for any such asset sale shall be in the form of cash and so long as the aggregate Net Cash Proceeds from each Asset Sale Proceeds of all assets sold pursuant to this clause (Bii) after are applied in accordance with the Second Restatement Effective Date do not exceed $75,000,000, and (z) enter into transactions permitted under requirements of Section 9.01(vi3.03(d);
(iii) Investments (including by loans and advances) may be made to the extent permitted by Section 9.0510.05;
(iv) the Company and each of the Borrowers its Subsidiaries and their Restricted Subsidiaries Material Joint Ventures may lease (as lessee) real or personal property in the ordinary course of business (so long as any such lease does not create a Capitalized Lease Obligation except to the extent unless permitted by clause (i) of this Section 9.0410.02);
(v) the Company and each of the Borrowers its Subsidiaries and their Restricted Subsidiaries Material Joint Ventures may make sales or transfers of inventory (x) in the ordinary course of business or (y) to any other Borrower or any Domestic Wholly-Owned Subsidiary of Furniture Brands which is a Subsidiary Guarantorbusiness;
(vi) the Borrowers and their respective Restricted Subsidiaries Canadian Acquisition shall be permitted to make Permitted Acquisitions as contemplated in the Canadian Acquisition Documents; C/M 11752.0000 414856.1
(vii) the Company and its Subsidiaries may sell any Specified Existing Investment, so long as (Ai) each sale is in an arms' length transaction and the Company or the respective Subsidiary receives at least fair market value (as determined in good faith by the Board of Directors of the Company or any authorized committee of such Permitted Acquisitions Board of Directors) and (ii) the Net Cash Proceeds from each Asset Sale pursuant to this clause (vii) are effected applied in accordance with the requirements of Section 8.14, (B) after giving effect to any Permitted Acquisition, the aggregate amount paid (including for the purpose of this clause (vi) all cash consideration paid, the amount of all Indebtedness directly issued as consideration, the face amount of all Permitted Acquired Debt incurred or assumed and the fair market value of any merger consideration, but excluding the fair market value of all Furniture Brands Common Stock and/or Qualified Preferred Stock issued as consideration therefor, in each case in connection with such Permitted Acquisition) by the Borrowers and their Restricted Subsidiaries in connection with such Permitted Acquisition shall not exceed the sum of (x) the Available Basket Amount at such time (after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Permitted Acquisition) and (y) the Available Debt Proceeds Amount at such time (after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Permitted Acquisition3.03(d), and (C) with respect to each Permitted Acquisition, no Default or Event of Default is in existence at the time of the consummation of such Permitted Acquisition or would exist after giving effect thereto;
(vii) Furniture Brands may sell or otherwise dispose of any shares of capital stock of any Unrestricted Subsidiaries owned by it;
(viii) the Company and each of its Subsidiaries and Material Joint Ventures may sell Hotel Properties (or the entire equity interests of such Person in any Subsidiary or Joint Venture owning or leasing the respective Hotel Properties), so long as (i) no Default or Event of Default then exists or would result therefrom, (ii) each sale is in an arms' length transaction and the Borrowers Company or the respective Subsidiary or Material Joint Venture receives at least fair market value (as determined in good faith by the Board of Directors of the Company or any Domestic Wholly-Owned Subsidiary which is a Restricted Subsidiary of Furniture Brands may be merged into or consolidated with any Borrower (so long as such Borrower is the surviving corporation authorized committee of such merger) or any other Domestic Wholly-Owned Subsidiary which is a Restricted Subsidiary Board of the Borrowers;
Directors), (ixiii) the Borrowers and their respective Restricted Subsidiaries shall be permitted to merge with another Person (so long as total consideration received by the Company or such Borrower or Restricted Subsidiary is the surviving corporation), so long as such merger is used to effect a Permitted Acquisition at least 75% in compliance with Section 9.02(vi); and
(x) the Borrowers may sell or otherwise dispose of Excluded Assets. To the extent the Required Banks (or, the Required Supermajority Banks to the extent required by Section 13.12(a)) waive the provisions of this Section 9.02 cash with respect to the sale of any Collateralwholly-owned Hotel Property of the Company or a Wholly-Owned Subsidiary thereof (or with respect to the sale of any Wholly-Owned Subsidiary of the Company) or with respect to the sale of any Joint Venture (or any Hotel Property of such Joint Venture) set forth on Schedule X, provided that, (x) in lieu of receiving cash in any sale of the entire equity interest in any Joint Venture existing on the Initial Borrowing Date, the Company or the respective Subsidiary may exchange the entire equity interest of such Joint Venture for equity interests (not theretofore owned, directly or indirectly, by the Company) of one or more other Joint Ventures existing on the Initial Borrowing Date so long as the effect of any such exchange is to increase the Company's direct or indirect, as the case may be, equity interests in the Joint Venture or Joint Ventures so acquired and (y) with respect to the sale of any Joint Venture (or any Hotel Property owned by such Joint Venture) (other than with respect to the sale of any Joint Venture (or any Hotel Property owned by such Joint Venture) listed on Schedule X) the aggregate amount of all non-cash consideration held at any one time shall not exceed $10,000,000 (taking the face amount of debt and the fair market value of all other non-cash collateral, and determined without regard to any writedowns or write-offs thereof), (iv) the aggregate Net Cash Proceeds of all assets sold pursuant to this clause (viii) shall not exceed $25,000,000 in any fiscal year of the Company and (v) the Net Cash Proceeds from each Asset Sale pursuant to this clause (viii) are applied in accordance with the requirements of Section 3.03(d); C/M 11752.0000 414856.1
(ix) the Company and each of its Wholly-Owned Subsidiaries may acquire Hotel Properties (including by purchasing 90% or more of the capital stock or partnership interests of the Person that owns such Hotel Properties) so long as (i) such Hotel Properties are at least 90% owned by the Company or such Wholly-Owned Subsidiary, (ii) such Hotel Properties are located in the United States, Canada, Mexico or Puerto Rico, provided that, notwithstanding the foregoing, at any date of determination Hotel Properties representing less than 10% of Total Hotel Revenues for the Test Period then most recently ended and less than 10% of the consolidated total assets of the Company and its Subsidiaries (after reduction for minority interests) as calculated on the most recently ended fiscal quarter of the Company shall not be required to be subject to this clause (ii), (iii) prior to the date of acquisition of any such Hotel Property, the Company shall have delivered to each of the Banks a Phase I environmental assessment on such Hotel Property from an environmental firm, certified to and in form, scope and substance, reasonably satisfactory to the Administrative Agent, (iv) with respect to the acquisition of any Hotel Property subject to a Leasehold (and which will not be owned by the Company or the respective Wholly-Owned Subsidiary in fee), such Hotel Property may be acquired only if the respective Leasehold shall have a remaining term (including a right of extension by the Company or such Wholly-Owned Subsidiary) of at least 15 years, (v) at least 10 Business Days prior to the consummation of any acquisition of any Hotel Property the Company shall have delivered to each of the Banks the Information Package relating to such Hotel Property, and in the case of any acquisition of any Hotel Property or group of related Hotel Properties in which the total consideration exceeds $15,000,000, the Required Banks shall have not informed the Company in writing prior to the end of 15 Business Days after the Bank's receipt of the respective Information Package that they do not approve of such acquisition, (vi) except to the extent otherwise permitted by Section 9.11, each Hotel Property shall be operated as a "Travelodge", a "Thriftlodge" or another nationally recognized hotel brand which the Chairman of the Board of Directors and the chief financial officer of the Company (in a certificate signed by them delivered to the Agents) have determined to be in the best interests of the Company and shall be subject to a Franchise Agreement, a copy of which Franchise Agreement shall be delivered to each of the Banks on or prior to the date of the consummation of the acquisition of such Hotel Property, and (vii) in the case of any acquisition of any Hotel Property or group of related Hotel Properties in which the total consideration exceeds $3,000,000, (I) based on calculations made by the Company on a Pro Forma Basis after giving effect to the respective C/M 11752.0000 414856.1 acquisition, no Default or Event of Default will exist under, or any Collateral would have existed during the period of four consecutive fiscal quarters last reported (or required to be reported pursuant to Section 9.01(b) or (c), as the case may be) prior to the date of the respective acquisition under, the financial covenants contained in Sections 10.08 through 10.11, inclusive, (II) based on good faith projections prepared by the Company for the period from the date of the consummation of the acquisition to the date which is sold as permitted one year thereafter or based on the historical financial statements (but after giving effect to all Scheduled Commitment Reductions that will occur during the one year period after the date of the consummation of the respective acquisition) delivered in the Information Package for such Hotel Property or Hotel Properties calculated on a Pro Forma Basis after giving effect to the respective acquisition, the level of financial performance measured by this Section 9.02the covenants set forth in Sections 10.08 through 10.11, such Collateral (unless sold to Furniture Brands or a Subsidiary of Furniture Brands) inclusive, shall be sold free and clear better than or equal to such level as would be required to provide that no Default or Event of Default will exist under the financial covenants contained in such Sections 10.08 through 10.11, inclusive, as compliance with such covenants will be required through the date which is one year from the date of the Liens created by consummation of the Security Documentsrespective acquisition, and (III) the Company shall have delivered to the Administrative Agent an officer's certificate executed by an Authorized Financial Officer of the Company, certifying to the best of such officer's knowledge, compliance with the requirements of this clause (vii) and Collateral Agent shall be authorized to take any actions deemed appropriate containing the calculations (in order to effect the foregoing.reasonable detail) required by this clause (vii);
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrowers will not, and will not permit any of their respective Restricted Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its property or assets (other than the liquidation of Cash Equivalents in the ordinary course of business), or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment, furniture, fixtures, and intangible assets in the ordinary course of business) of any Person, except that:
(i) Capital Expenditures by the Borrowers and their Restricted Subsidiaries shall be permitted to the extent not in violation of Section 9.07;
(ii) each of the Borrowers and their Restricted Subsidiaries may (x) in the ordinary course of business, sell, lease or otherwise dispose of any assets which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer useful in the conduct of such Person's business, (y) sell, lease or otherwise dispose of any other assets, provided that each such sale, lease or disposition shall be for fair market value (other than with respect to sales, leases or dispositions in an aggregate amount not to exceed $100,000 per calendar year) and at least 75% of the consideration therefor shall be in the form of cash, and provided further, that (A) except as provided in following clause (B), the aggregate Net Sale Proceeds of all assets subject to sales or other dispositions pursuant to clauses (x) and (y) shall not exceed $15,000,000 in the aggregate in any Fiscal Year and (B) in addition to sales effected pursuant to preceding clause (A), additional assets may be sold pursuant to this Section 9.02(ii) so long as at least 90% of the aggregate consideration for any such asset sale shall be in the form of cash and so long as the aggregate Net Sale Proceeds of all assets sold pursuant to this clause (B) after the Second Restatement Effective Date do not exceed $75,000,000, and (z) enter into transactions permitted under Section 9.01(vi);
(iii) Investments may be made to the extent permitted by Section 9.05;
(iv) each of the Borrowers and their Restricted Subsidiaries may lease (as lessee) real or personal property (so long as any such lease does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04);
(v) each of the Borrowers and their Restricted Subsidiaries may make sales or transfers of inventory (x) in the ordinary course of business or (y) to any other Borrower or any Domestic Wholly-Owned Subsidiary of Furniture Brands which is a Subsidiary Guarantor;
(vi) the Borrowers and their respective Restricted Subsidiaries shall be permitted to make Permitted Acquisitions so long as (A) such Permitted Acquisitions are effected in accordance with the requirements of Section 8.14, (B) after giving effect to any Permitted Acquisition, the aggregate amount paid (including for the purpose of this clause (vi) all cash consideration paid, the amount of all Indebtedness directly issued as consideration, the face amount of all Permitted Acquired Debt incurred or assumed and the fair market value of any merger consideration, but excluding the fair market value of all Furniture Brands Common Stock and/or Qualified Preferred Stock issued as consideration therefor, in each case in connection with such Permitted Acquisition) by the Borrowers and their Restricted Subsidiaries in connection with such Permitted Acquisition shall not exceed the sum of (x) the Available Basket Amount at such time (after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Permitted Acquisition) and (y) the Available Debt Proceeds Amount at such time (after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Permitted Acquisition), and (C) with respect to each Permitted Acquisition, no Default or Event of Default is in existence at the time of the consummation of such Permitted Acquisition or would exist after giving effect thereto;
(vii) Furniture Brands may sell or otherwise dispose of any shares of capital stock of any Unrestricted Subsidiaries owned by it;
(viii) so long as no Default or Event of Default then exists or would result therefrom, the Borrowers or any Domestic Wholly-Owned Subsidiary which is a Restricted Subsidiary of Furniture Brands may be merged into or consolidated with any Borrower (so long as such Borrower is the surviving corporation of such merger) or any other Domestic Wholly-Owned Subsidiary which is a Restricted Subsidiary of the Borrowers;
(ix) the Borrowers and their respective Restricted Subsidiaries shall be permitted to merge with another Person (so long as such Borrower or Restricted Subsidiary is the surviving corporation), so long as such merger is used to effect a Permitted Acquisition in compliance with Section 9.02(vi); and
(x) the Borrowers may sell or otherwise dispose of Excluded Assets. To the extent the Required Banks (or, the Required Supermajority Banks to the extent required by Section 13.12(a)) waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02, such Collateral (unless sold to Furniture Brands or a Subsidiary of Furniture Brands) shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.this
Appears in 1 contract
Samples: Credit Agreement (Furniture Brands International Inc)
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrowers Holdings will not, and will not permit any of their respective Restricted its Subsidiaries to, wind wind-up, liquidate or dissolve its any of their affairs or enter into any transaction of merger merger, amalgamation or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future timetime without the Agent's prior written consent) all or any part of its property or assets (other than the liquidation of Cash Equivalents in the ordinary course of business)assets, or enter into any sale-leaseback transactionsSale and Leaseback Transaction, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment, furniture, fixtures, equipment and intangible assets in the ordinary course of business) of any Person, except that:
(ia) Capital Expenditures by the Borrowers Borrower and their Restricted its Subsidiaries shall be permitted to make Capital Expenditures to the extent not in violation of Section 9.079.1;
(iib) each of the Borrowers Borrower and their Restricted its Subsidiaries may may: (xi) in the ordinary course of business, sell, lease or otherwise dispose of any assets which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer used or useful in the conduct of such Person's business; and (ii) so long as no Event of Default or Unmatured Event of Default exists at the time of the respective sale of assets or immediately after giving effect thereto, (y) sell, lease sell or otherwise dispose of any other assetsassets or property (which may include interests in Subsidiaries, provided that each such sale, lease or disposition shall be for fair market value (other than with respect to sales, leases or dispositions in an aggregate amount not to exceed $100,000 per calendar year) and at least 75% no part of the consideration therefor shall be in the form Capital Stock of cash, and provided further, that (A) except as provided in following clause (B), the aggregate Net Sale Proceeds of all assets subject to sales or other dispositions pursuant to clauses (x) and (y) shall not exceed $15,000,000 in the aggregate in any Fiscal Year and (B) in addition to sales effected pursuant to preceding clause (A), additional assets Subsidiary may be sold pursuant to this Section 9.02(iiclause (ii) so long as unless all of the Capital Stock of the respective Subsidiary is sold pursuant to such sale) with a Fair Market Value not to exceed $5,000,000 in the aggregate during any Fiscal Year, provided that (A) the sale price with respect to each such Asset Disposition shall not be less than the Fair Market Value of such asset or assets sold, (B) at least 90% eighty-five percent (85%) of the aggregate consideration for any such asset sale price shall be paid in Cash or Cash Equivalents (and treating as Cash for this purpose the form trade-in or 122 129 exchange value of cash any item of equipment that is being sold to the extent that a new item of equipment is being purchased as part of such transaction), and so long as (C) the aggregate Net Sale Proceeds of all assets sold pursuant from such sale or disposition are applied to this clause (B) after repay Loans to the Second Restatement Effective Date do not exceed $75,000,000, and (z) enter into transactions permitted under extent required by Section 9.01(vi4.4(c);
(iiic) Investments may be made to the extent permitted by Section 9.058.8;
(ivd) each of the Borrowers Borrower and their Restricted its Subsidiaries may lease enter into leases (as lessee) real or personal property (so long as any such lease does not create a in the ordinary course of business, including Capitalized Lease Obligation except Leases to the extent permitted by Section 9.048.2(i);
(ve) each of the Borrowers Borrower and their Restricted its Subsidiaries may make sales or transfers of inventory (x) in the ordinary course of business and consistent with past practices;
(f) Borrower and its Subsidiaries may sell or discount, in each case without recourse and in the ordinary course of business, accounts receivable arising in the ordinary course of business (x) which are overdue, or (y) which Borrower may reasonably determine are difficult to collect but only in connection with the compromise or collection thereof consistent with customary industry practice (and not as part of any other bulk sale or financing of receivables);
(g) any Subsidiary of Borrower may merge or any Domestic consolidate with or into (i) Borrower so long as Borrower is the surviving Person or (ii) another Wholly-Owned Subsidiary of Furniture Brands Borrower which is a Subsidiary Guarantor so long as a Wholly-Owned Subsidiary which is a Subsidiary Guarantor is the surviving Person;
(h) Borrower and its Subsidiaries may acquire inventory and other assets in the ordinary course of business;
(i) Any Subsidiary of Borrower may be dissolved or liquidated into Borrower or any Wholly-Owned Subsidiary of Borrower which is a Subsidiary Guarantor, and any Subsidiary of Borrower may sell, lease, transfer or otherwise dispose of any or all of its assets to Borrower or any Wholly-Owned Subsidiary of Borrower which is a Subsidiary Guarantor;
(vij) Holdings and its Subsidiaries may consummate the Borrowers Transactions as of the Original Closing Date pursuant to the Transaction Documents;
(k) Borrower or any of its Subsidiaries may acquire (other than through an unsolicited public offer) assets constituting all or substantially all of a business, business unit, division or product line of any Person not already a Subsidiary of Borrower (a "Target") or all of the Capital Stock of any such Person (including any such acquisition by way of merger or consolidation) to the extent such acquired Person or the surviving entity of such merger or consolidation is or becomes a Credit Party and their respective Restricted Subsidiaries shall be executes the Additional Security Documents and takes such other actions as are required in Section 7.12 (any such acquisition permitted by this clause (k) or otherwise consented to make in writing by the Required Lenders, a "Permitted Acquisitions so long as Acquisition"), provided that (Ai) such Permitted Acquisitions are effected in accordance with the requirements no Event of Section 8.14, Default or Unmatured Event of Default then exists (B) both before and after giving effect to any Permitted Acquisition, the aggregate amount paid (including for the purpose of this clause (vi) all cash consideration paid, the amount of all Indebtedness directly issued as consideration, the face amount of all Permitted Acquired Debt incurred or assumed and the fair market value of any merger consideration, but excluding the fair market value of all Furniture Brands Common Stock and/or Qualified Preferred Stock issued as consideration therefor, in each case in connection with such Permitted Acquisition) by the Borrowers and their Restricted Subsidiaries in connection with such Permitted Acquisition shall not exceed the sum of (x) the Available Basket Amount at such time (after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Permitted Acquisition) and (y) the Available Debt Proceeds Amount at such time (after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Permitted Acquisition), (ii) Holdings and (C) with respect its Subsidiaries shall be in compliance, on a pro forma basis after giving effect to each such Permitted Acquisition, no Default with the covenants contained in Article IX recomputed as of the last day of the most recently ended Fiscal Quarter of Holdings as if such Permitted Acquisition had occurred on the 123 130 first day of each relevant period for testing such compliance, (iii) the business or Event Person acquired pursuant to such Permitted Acquisition is engaged in the same or substantially similar line of Default is business as conducted by Borrower and its Subsidiaries as of the Original Closing Date, (iv) the business or Person acquired pursuant to such Permitted Acquisition had positive pro forma Consolidated EBITDA for the full twelve month period last ended prior to the consummation of such Permitted Acquisition, (v) the most recent drafts of all material documentation governing such Permitted Acquisition shall be delivered to Agent and its counsel in existence at the time advance of the consummation of such Permitted Acquisition and shall be reasonably acceptable to Agent, (vi) the only consideration paid in connection with such Permitted Acquisition (including any deferred payments, whether in the form of purchase price adjustments, earn-out payments or would exist after giving effect thereto;
otherwise) consists of cash, Holdings Common Stock, Junior Subordinated Notes, Seller Subordinated Notes and/or Permitted Holdings Preferred Stock (collectively, "Acquisition Consideration"), (vii) Furniture Brands may sell or otherwise dispose no more than 90% of any shares the Acquisition Consideration for such Permitted Acquisition consists of capital stock of any Unrestricted Subsidiaries owned by it;
cash, (viii) so long as no Default or Event of Default then exists or would result therefrom, the Borrowers or any Domestic Wholly-Owned Subsidiary which is a Restricted Subsidiary of Furniture Brands may be merged into or consolidated with any Borrower (so long as such Borrower is the surviving corporation of such merger) or any other Domestic Wholly-Owned Subsidiary which is a Restricted Subsidiary more than 38% of the Borrowers;
Acquisition Consideration for such Permitted Acquisition consisting of Holdings Common Stock, Junior Subordinated Notes and/or Permitted Holdings Preferred Stock is in the form of Junior Subordinated Notes, (ix) the Borrowers and their respective Restricted Subsidiaries shall be permitted to merge with another Person aggregate amount of Acquisition Consideration (so long as such value, including future earn-out obligations, is determined in good faith by the board of directors of Holdings in a resolution delivered to Agent) for any such Permitted Acquisition (or series of related acquisitions) shall not exceed $25,000,000 and for all such Permitted Acquisitions shall not exceed $150,000,000, (x) the Total Available Revolving Commitment is equal to or greater than $5,000,000 both before and immediately after giving effect to such Permitted Acquisition, (xi) no more than fifteen (15) Permitted Acquisitions may be consummated after the Original Closing Date and (xii) Borrower or Restricted Subsidiary is delivers an officer's certificate to Agent certifying on behalf of Borrower as to compliance with the surviving corporationrequirements of this clause (k) and containing detailed calculations satisfactory to Agent required pursuant to clauses (ii), so long (iv), (vii), (viii) and (ix), above. Pro forma calculations made pursuant to clauses (ii) and (iv) above may include adjustments (the "Pro Forma Adjustments") to eliminate the effect of any non-recurring expenses or income with respect to Holdings and its Subsidiaries or any acquired Person or assets on Consolidated EBITDA, as determined reasonably and in good faith by the chief financial officer of Holdings on behalf of Borrower and approved by the board of directors of Holdings, as set forth in an officer's certificate delivered to Agent setting forth in reasonable detail the basis for such merger is used to effect a Permitted Acquisition in compliance with Section 9.02(vi)adjustments and reasonably acceptable by Agent;
(l) the liquidation of any Cash Equivalents; and
(xm) the Borrowers may sell or otherwise dispose cancellation of Excluded Assets. To the extent the Required Banks (or, the Required Supermajority Banks to the extent required any promissory notes permitted by Section 13.12(a8.8(l)) waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02, such Collateral (unless sold to Furniture Brands or a Subsidiary of Furniture Brands) shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Consolidation, Merger, Purchase or Sale of Assets, etc. The Borrowers will not, and will not permit any of their respective Restricted Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing fore- going at any future time) all or any part of its property or assets (other than the liquidation of Cash Equivalents in the ordinary course of business), or enter into any sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactionstrans- actions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials, equipment, furniture, fixtures, and intangible assets in the ordinary course of business) of any Person, except that:
(i) Capital Expenditures by the Borrowers and their Restricted Subsidiaries shall be permitted to the extent not in violation of Section 9.07;
(ii) each of the Borrowers and their Restricted Subsidiaries may (x) in the ordinary course of business, sell, lease or otherwise dispose of any assets which, in the reasonable judgment of such Person, are obsolete, worn out or otherwise no longer useful in the conduct of such Person's business, (y) sell, lease or otherwise dispose of any other assets, provided that each such sale, lease or disposition shall be for fair market value (other than with respect to sales, leases or dispositions in an aggregate amount not to exceed $100,000 per calendar year) and at least 75% of the consideration therefor shall be in the form of cash, and provided further, that (A) except as provided in following clause (B), the aggregate Net Sale Proceeds of all assets subject to sales or other dispositions pursuant to clauses (x) and (y) shall not exceed $15,000,000 in the aggregate in any Fiscal Year and (B) in addition to sales effected pursuant to preceding clause (A), additional assets may be sold pursuant to this Section 9.02(ii) so long as at least 90% of the aggregate consideration for any such asset sale shall be in the form of cash and so long as the aggregate Net Sale Proceeds of all assets sold pursuant to this clause (B) after the Second Restatement Effective Date do not exceed $75,000,000, and (z) enter into transactions permitted under Section 9.01(vi);
(iii) Investments may be made to the extent permitted by Section 9.05;
(iv) each of the Borrowers and their Restricted Subsidiaries may lease (as lessee) real or personal property (so long as any such lease does not create a Capitalized Lease Obligation except to the extent permitted by Section 9.04);
(v) each of the Borrowers and their Restricted Subsidiaries may make sales or transfers of inventory (x) in the ordinary course of business or (y) to any other Borrower or any Domestic Wholly-Owned Subsidiary of Furniture Brands which is a Subsidiary Guarantor;
(vi) sales and contributions of accounts receivable to the Receivables Subsidiary and sales of accounts receivable by the Receivables Subsidiary to the Receivables Purchasers, and purchases and acquisitions of accounts receivable by the Receivables Subsidiary, in each case pursuant to the Receivables Facility shall be permitted;
(vii) the Borrowers and their respective Restricted Subsidiaries shall be permitted to make Permitted Acquisitions so long as (A) such Permitted Acquisitions are effected in accordance with the requirements of Section 8.14, (B) after giving effect to any Permitted Acquisition, the aggregate amount paid (including for the purpose of this clause (vivii) all cash consideration paid, the amount of all Indebtedness and/or Disqualified Preferred Stock directly issued as consideration, the face amount of all Permitted Acquired Debt incurred or assumed and the fair market value of any merger considerationcon- sideration, but excluding the fair market value of all Furniture Brands Common Stock and/or Qualified Preferred Stock issued as consideration therefor, in each case in connection with such Permitted Acquisition) by the Borrowers and their Restricted Subsidiaries in connection with such Permitted Acquisition shall not exceed the sum of (x) the Available Basket Amount at such time (after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Permitted Acquisition) and (y) the Available Debt Proceeds Acquisition Amount at such time (after giving effect to all prior and contemporaneous adjustments thereto, except as a result of such Permitted Acquisition); provided that in no event shall such aggregate amount paid in connection with Permitted Acquisitions effected after the Second Restatement Effective Date (calculated in accordance with the first parenthetical contained in preceding clause (B)), when added to the amount of Investments made after the Second Restatement Effective Date pursuant to Section 9.05(vii), exceed $75,000,000 plus the Returned Investment Amount as calculated on the date any determination is being made pursuant to this proviso, and (C) with respect to each Permitted Acquisition, no Default or Event of Default is in existence at the time of the consummation of such Permitted Acquisition or would exist after giving effect thereto;
(viiviii) Furniture Brands may sell or otherwise dispose of any shares of capital stock of any Unrestricted Subsidiaries owned by it;
(viiiix) so long as no Default or Event of Default then exists or would result therefrom, the Borrowers or any Domestic Wholly-Owned Subsidiary which is a Restricted Subsidiary (other than the Receivables Subsidiary) of Furniture Brands may be merged into or consolidated with any Borrower (so long as such Borrower is the surviving corporation of such merger) or any other Domestic Wholly-Wholly- Owned Subsidiary which is a Restricted Subsidiary (other than the Receivables Subsidiary) of the Borrowers;
(ixx) the Borrowers and their respective Restricted Subsidiaries (other than the Receivables Subsidiary) shall be permitted to merge with another Person (so long as such Borrower or Restricted Subsidiary is the surviving corporation), so long as such merger is used to effect a Permitted Acquisition in compliance with Section 9.02(vi9.02(vii); and
(xxi) the Borrowers may sell or otherwise dispose of Excluded Assets. To the extent the Required Banks (or, the Required Supermajority Banks to the extent required by Section 13.12(a)) waive the provisions of this Section 9.02 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 9.02, such Collateral (unless sold to Furniture Brands or a Subsidiary of Furniture Brands) shall be sold free and clear of the Liens created by the Security Documents, and the Administrative Agent and Collateral Agent shall be authorized to take any actions deemed appropriate in order to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Furniture Brands International Inc)
