Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower will not, and will not permit any of their respective 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted: (a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property; (b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07; (c) the advances, investments and loans permitted pursuant to Section 9.05; (d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof; (e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged; (f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license; (g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer); (h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation); (i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation); (j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); ----------------------------- (k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;
Appears in 2 contracts
Samples: Credit Agreement (Coinmach Laundry Corp), Credit Agreement (Coinmach Corp)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the The Borrower will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease or otherwise dispose of (its property or assets or agree to do any so at a future time except the following, without duplication, shall be expressly permitted:
(i) Specified Sales;
(ii) the sale, transfer, lease or other disposition of the foregoing at any future time) all or any part of its property or assets (other than inventory A) to an unrelated party not in the ordinary course of businessbusiness (other than Specified Sales), including where and to the extent that they are the result of a Recovery Event or (B) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Borrower or any of its Subsidiaries, as appropriate, in its reasonable discretion, so long as and the net proceeds therefrom are used to repair or replace damaged property or to purchase or otherwise acquire new assets or property, provided that such purchase or acquisition is committed to within 180 days of receipt of the net proceeds and such purchase or acquisition is consummated within 270 days of receipt of such proceeds;
(iii) the sale, lease or transfer of property or assets (at fair market value) from the Borrower to any Guarantor;
(iv) the sale, lease or transfer of property or assets (at fair market value) from a Guarantor to another Guarantor; and
(v) the sale, lease or transfer of property or assets not to exceed $1,000,000 in the aggregate in any fiscal year; provided, that in each case at least 75% of the consideration received therefor by the Borrower or any such Subsidiary is in the form of cash or Cash Equivalents; provided, further, that with respect to sales of inventory on consignment in assets permitted hereunder only, the ordinary course Administrative Agent shall be entitled, without the consent of business)the Required Lenders, or enter into any partnershipsto release its Liens relating to the particular assets sold; or
(i) purchase, joint ventures or sale-leaseback transactions, or purchase lease or otherwise acquire (in one a single transaction or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, materials leases, materials, property and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
as otherwise limited or prohibited herein) or (aii) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in any transaction of merger or consolidation, except for (A) Investments or acquisitions (including Permitted Acquisitions and the ordinary course of business with respect to real or personal property;
(bAcquisition) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
6.5, and (dB) Holdings and its Subsidiaries may sell the merger or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of Credit Party with and into another Credit Party, provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is will be the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;corporation.
Appears in 2 contracts
Samples: Credit Agreement (Intermagnetics General Corp), Credit Agreement (Intermagnetics General Corp)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and Each of the Borrower Credit Parties will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, wind up:
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease to a third party 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 or agree to do so at a future time except the following, without duplication, shall be expressly permitted:
(i) Specified Sales;
(ii) Sale Leaseback Transactions to the extent permitted under Section 6.12;
(iii) the disposition of property or assets as a result of a Recovery Event;
(iv) the sale, lease, transfer or other disposition of (A) machinery, parts and equipment no longer used or useful in the conduct of the business of the Borrower or any of its Subsidiaries and (B) property and assets located at or used in connection with, or which are otherwise associated with, restaurants that are not material to the business of any Credit Party;
(v) the sale, lease or transfer of property or assets between Credit Parties, so long as the Liens of the Administrative Agent with respect to such property or assets remain in full force and effect and fully perfected after giving effect to such transaction;
(vi) the dissolution, liquidation or winding up of a Liquor License Subsidiary or any sale, transfer or other disposition of assets from a Liquor License Subsidiary to a Credit Party or another Liquor License Subsidiary;
(vii) the sale, lease or transfer of the properties set forth on Schedule 2.8(b)(ii),
(viii) the sale of restaurants owned by the Credit Parties to franchisees for fair market value so long as the aggregate consideration for all sales made in reliance on this clause (viii) does not exceed $35,000,000 in any fiscal year; and
(ix) the sale, lease or transfer of property or assets for fair market value so long as the aggregate consideration for all sales, leases and transfers of property or assets made in reliance on this clause (ix) does not exceed $50,000,000 during the term of this Agreement; provided, that in each case (other than inventory with respect to clause (v) above and dispositions of assets of a restaurant in connection with a refinishing, refurnishing or upgrade of such restaurant for consideration less than $100,000 in the ordinary course aggregate per restaurant) (A) at least 75% of business, including sales of inventory on consignment the consideration received therefor by any Credit Party or any such Subsidiary shall be in the ordinary course form of business)cash or Cash Equivalents, (B) after giving effect to the sale, lease, transfer or enter into other disposition of such property or assets and the repayment of Indebtedness (if any) with the proceeds thereof, the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.9 hereof and shall be in compliance with all other terms and conditions of this Agreement, and (C) no Event of Default shall exist or shall result from such sale, lease, transfer or other disposition of property or assets; provided, further, that with respect to any partnershipssale or transfer of property or assets permitted hereunder to an unrelated third party, joint ventures the Administrative Agent shall be entitled, without the consent of the Lenders or sale-leaseback transactionsthe Required Lenders, to release its Liens relating to the particular property or purchase assets sold; or
(b) (i) purchase, lease or otherwise acquire (in one a single transaction or a series of related transactions) any part all or substantially all of the property or assets or a majority of the Voting Stock of any Person (other than purchases or other acquisitions of inventory, materials goods, materials, property and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
as otherwise limited or prohibited herein) or (aii) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course any transaction of business with respect to real merger or personal property;
consolidation, except for (bA) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
Permitted Acquisitions, (cB) the advances, investments and loans or acquisitions permitted pursuant to Section 9.05;
6.6, and (dC) Holdings and its Subsidiaries may sell the merger or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of Credit Party with and into another Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is will be the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;corporation.
Appears in 2 contracts
Samples: Credit Agreement (Red Robin Gourmet Burgers Inc), Credit Agreement (Red Robin Gourmet Burgers Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the The Borrower will not, and nor will not it permit any of their respective its Subsidiaries to:
(a) except in connection with a disposition of assets permitted by the terms of subsection (c) below, wind updissolve, liquidate or dissolve its affairs or wind up their affairs;
(b) enter into any transaction of merger or consolidation; provided, or conveyhowever, sellthat, 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists would be directly or would indirectly caused as a result therefrom thereof, any Credit Party (including other than the Borrower) may merge or consolidate with any other Credit Party (other than the Borrower);
(c) sell, lease, transfer or otherwise dispose of any Property of the Borrower and its Subsidiaries other than (i) the sale or disposition of machinery and equipment no longer used or useful in the conduct of such Person's business, (ii) other sales of assets (but not accounts receivable, except delinquent accounts sold for collection purposes only), provided that, after giving pro forma effect to such acquisition sale or other disposition, the aggregate book value of assets sold or otherwise disposed of pursuant to this clause (ii) does not exceed $500,000 in any fiscal year and --- ----- (iii) the grant of any additional Indebtedness resulting therefrom option or incurred other right to purchase any asset in a transaction that would be permitted under the provisions of the foregoing clause (ii), provided that no Default or assumed in connection therewith as if such acquisition had Event of Default has occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, is continuing at the time of delivery such grant;
(d) acquire all or any portion of the Permitted Acquisition Noticecapital stock or securities of any other Person or purchase, lease or otherwise acquire (in a certificate single transaction or a series of related transactions) all or any portion of the Chief Financial Officer Property of Holdings showing compliance any other Person, except for any merger or consolidation permitted pursuant to Section 8.4(b); or
(e) become a general partner in reasonable detail any general or limited partnership, joint venture or similar arrangement. Upon a sale of any Property of a Credit Party permitted by Section 8.4(c), the Agent shall (to the extent applicable) deliver to the Credit Parties, upon the Credit Parties' request and at the Credit Parties' expense, such documentation as is reasonably necessary to pro forma calculations) with evidence the release of the Agent's security interest, if any, in such Property, including, without limitation, amendments or terminations of UCC financing statements, if any, the return of stock certificates, if any, and the release of such Credit Party from all of its obligations, if any, under the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Credit Documents.
Appears in 2 contracts
Samples: Credit Agreement (Personnel Group of America Inc), Credit Agreement (Personnel Group of America Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, and nor will not they permit any of their respective Subsidiaries Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidationaffairs, or conveysell, selltransfer, 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 (each a “Disposition”), except the following, without duplication, shall be expressly permitted:
(A) the sale, transfer, lease or other than inventory disposition of inventory, equipment and materials in the ordinary course of businessbusiness and (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(ii) the sale, including sales transfer or other disposition of inventory on consignment property or assets to an unrelated party not in the ordinary course of businessbusiness where and to the extent that they are the result of a Recovery Event or any taking under powers of eminent domain or by condemnation or similar proceedings;
(iii) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their Subsidiaries;
(iv) the sale, lease or transfer of property or assets from one Credit Party to another Credit Party or dissolution of any Credit Party (other than the Borrower) to the extent any and all assets of such Credit Party are distributed to another Credit Party;
(v) the termination of any Bank Product;
(vi) transactions permitted by Section 8.4(b) and transactions permitted by Section 8.10;
(vii) licenses of technology in the ordinary course of business (including, intercompany licensing of intellectual property between the Borrower and any Subsidiary and between Subsidiaries in connection with cost-sharing arrangements, distribution, marketing, make-sell or other similar arrangements);
(viii) any Subsidiary that is not a Credit Party may liquidate or dissolve if (A) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, (B) such liquidation or enter into dissolution is not materially disadvantageous to the Lenders and (C) all assets of such liquidated or dissolved Subsidiary, after payment of all creditors of such Subsidiary, shall be conveyed to the Borrower or a Subsidiary;
(A) any partnershipsSubsidiary that is not a Credit Party may sell, joint ventures transfer, lease or otherwise dispose of its assets to any Credit Party or another Subsidiary that is not a Credit Party and (B) any Credit Party may sell, transfer, lease or otherwise dispose of its assets to a Subsidiary that is not a Credit Party in the ordinary course of business and at fair market value (as reasonably determined by the Borrower) or in an aggregate amount not to exceed $20,000,000 in any fiscal year of the Borrower;
(x) to the extent constituting a transfer or disposition, (A) the making of any Investment permitted pursuant to Section 8.5 and (B) the creation, incurrence or assumption of any Lien permitted under Section 8.2 shall be permitted;
(xi) the use, transfer or disposition of cash or Cash Equivalents in the ordinary course of business and in a manner that is not prohibited by the terms of this Agreement;
(xii) the Borrower and its applicable Subsidiaries may transfer to any Domestic Subsidiary any property acquired pursuant to a Permitted Acquisition to facilitate internal reorganizations or tax planning strategies;
(xiii) the settlement, waiver, release or surrender of claims or litigation rights of any kind;
(xiv) the transfer of improvements or alterations made by the Credit Parties and their Subsidiaries in connection with the lease of any real or personal property by the Credit Parties and their Subsidiaries; and
(xv) the sale-leaseback transactions, lease or purchase transfer of property or assets not to exceed 10% of Consolidated Assets (measured as of the end of the immediately preceding fiscal quarter) in the aggregate during the term of this Agreement; provided, however, that any sale, lease or transfer of property or assets pursuant to this clause (xv) shall not give rise to any Default as a result of a subsequent decline in Consolidated Assets; provided that after giving effect to any Disposition pursuant to clause (xv) above, (A) the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 7.9 hereof, recalculated for the most recently ended fiscal quarter for which information is available and (B) no Default or Event of Default shall exist or shall result therefrom; or
(b) (i) purchase, lease or otherwise acquire (in one a single transaction or a series of related transactions) any part all, or substantially all of the property or assets (of any Person or any line of business or enterprise, other than purchases Permitted Acquisitions and other Investments or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
8.5 or (dii) Holdings and its Subsidiaries may sell consummate of merger or discountconsolidation, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise except for (A) Investments or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, acquisitions permitted pursuant to Section 8.5 so long as if any Credit Party subject to such merger or consolidation, a Credit Party is the proceeds of each such sale surviving entity, (B) (y) the merger or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings Subsidiary that is not a Credit Party with and into a Credit Party; provided that such Credit Party will be the surviving entity and (z) the merger or any consolidation of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of a Credit Party with and into another Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is will be the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j)corporation, and (iiC) Holdings the merger or the Borrower shall have given the Agents consolidation of a Subsidiary that is not a Credit Party with and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice into another Subsidiary that is not a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Credit Party.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, and nor will not they permit any of their respective Subsidiaries Subsidiary to,
(a) except as provided in Section 6.4(d) below, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidationconsolidation or amalgamation, or conveyliquidate, sell, lease wind up or otherwise dispose of dissolve itself (or agree to do suffer any of the foregoing at liquidation or dissolution);
(b) acquire any future time) all or any part of its property business or assets from, or Capital Stock of, or be a party to any acquisition of, any Person except:
(i) for purchases of inventory and other than inventory assets to be sold or used in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:; and
(aii) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Investments permitted under Section 9.076.5 hereof;
(c) the advancesconvey, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell sell, lease, transfer or discountotherwise dispose of, in each case one transaction or a series of transactions, any part of its business or assets, whether now owned or hereafter acquired (including, without recourselimitation, accounts receivable arising in the ordinary course of businessreceivables and leasehold interests), but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);excluding:
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and Excluded Disposition;
(ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents obsolete or worn-out Property, tools or equipment no longer used or useful in the assets of such Wholly Owned Subsidiary shall remain its business (other than any Excluded Disposition) or real Property no longer used or useful in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation)its business;
(jiii) any sale, lease or transfer of assets from a Credit Party to another Credit Party; and
(iv) other assets provided that the aggregate current market value of all assets so sold or transferred (in each case determined at the time of such sale or transfer) shall not at any time exceed, when added to the assets sold or transferred pursuant to Section 6.12 hereof (without duplication), 25% of the current market value of the total assets of the Parent and its Subsidiaries and immediately after giving effect to such transaction, the Parent and its Subsidiaries shall be in compliance with the financial covenants set forth in Section 5.9 hereof on a Pro Forma Basis and both before and after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; provided, that in each case with respect to subsection (iv) above at least 75% of the consideration received therefor by a Credit Party or any such Subsidiary is in the form of cash or Cash Equivalents or Replacement Assets; and
(d) Notwithstanding the foregoing provisions of this Section 6.4, so long as no Default or Event of Default then exists shall have occurred and be continuing, and after giving effect to any of the succeeding transactions, no Default or Event of Default would result therefrom exist hereunder:
(including i) (A) any Credit Party may be merged or consolidated with or into another Credit Party; provided, that, subject to clause (D) immediately below, if one of the parties to such merger or consolidation is the Borrower, the Borrower shall be the continuing or surviving corporation, (B) any Subsidiary may be merged or consolidated with or into another Credit Party so long as the surviving party is either (x) a Credit Party or (y) an Additional Credit Party; provided, that, subject to clause (D) immediately below, if one of the parties to such merger or consolidation is the Borrower, the Borrower shall be the continuing or surviving corporation, (C) any of the Parent or any Subsidiary may merge or consolidate with or into any Person that is not a Credit Party, provided that the applicable conditions set forth in Section 6.4(b) regarding acquisitions are complied with in connection with any such acquisition by merger, the Parent or any such Subsidiary shall be the continuing or surviving corporation and immediately after giving pro forma effect to such acquisition transaction, the Parent and --- ----- its Subsidiaries shall be in compliance with the financial covenants set forth in Section 5.9 hereof on a Pro Forma Basis and (D) the Borrower may merge or consolidate with or into any additional Indebtedness resulting therefrom Credit Party or incurred with any Person wholly-owned and controlled by a Credit Party, provided that if the Borrower is not the continuing or surviving entity, the surviving entity shall have assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as all obligations of the first day Borrower under the Credit Documents and immediately after giving effect to such transaction, the Parent and its Subsidiaries shall be in compliance with the financial covenants set forth in Section 5.9 hereof on a Pro Forma Basis and the ownership of the most recently completed Test Period (including any other Permitted Acquisition that occurred, properties and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery assets of the Permitted Acquisition Notice, Credit Parties as a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and whole shall remain unchanged; and
(ii) Holdings any Subsidiary of the Parent (other than, if the Parent is no longer the Borrower, the Borrower) may sell, lease, transfer or the otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to any Credit Party. The Borrower shall have given provide the Agents and the Banks at least 30 days Administrative Agent with prior written notice of any Permitted Acquisition (each transaction described in this Section 6.4(d) and take such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any other action as may be required pursuant to the terms of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Section 5.12.
Appears in 1 contract
Samples: Credit Agreement (Dollar Tree Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Loan Parties will not, nor will they permit any Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, or sell, transfer, lease or otherwise Dispose of its property or assets or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:
(A) the sale, transfer, lease or other Disposition of inventory and will materials in the ordinary course of business and (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(ii) the sale, transfer or other Disposition of property or assets to an unrelated party not permit in the ordinary course of business where and to the extent that such sale, transfer or other Disposition is the result of theft, loss, physical destruction or damage, taking or similar event with respect to any of the Loan Parties or any of their Subsidiaries’ respective Subsidiaries toproperty or assets;
(iii) the sale, wind uplease, liquidate transfer or dissolve other Disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Loan Parties or any of their Subsidiaries;
(iv) the sale, lease or transfer of property or assets from one Loan Party to another Loan Party or dissolution of any Loan Party (other than the Borrower) to the extent any and all assets of such Loan Party are distributed to another Loan Party;
(v) the termination of any Swap Agreement;
(vi) the sale, lease, transfer, closure or other Disposition (including, without limitation, refranchising) of Restaurants and real property related thereto, the termination or non-renewal of leases or the subletting of Restaurants, in each case as determined to be prudent in the reasonable judgment of the senior officers of the Borrower;
(vii) Dispositions constituting Sale Leaseback transactions that are permitted by Section 6.12; and
(viii) any other sale, lease or other transfer of property or assets to a third party that is not an Affiliate of a Loan Party or any Subsidiary of a Loan Party; provided that (A) with respect to clauses (i)(A), (iii), (vi), (vii) and (viii) above, 100% of the consideration received therefor by the Loan Parties or any such Subsidiary shall be in the form of cash, (B) after giving effect to any Disposition pursuant to clause (vii) above, the Loan Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.10 hereof, recalculated for the most recently ended fiscal quarter for which information is available and (C) with respect to clauses (vii) and (viii) above, no Default or Event of Default (determined prior to giving effect to any Cure) shall exist or shall result therefrom; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall, without the consent of any Lender, release its affairs Liens relating to the particular assets sold; or
(b) (i) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person, other than (A) the lease or acquisition of real property in connection with Permitted Construction Transactions; (B) except as otherwise limited or prohibited herein, purchases or other acquisitions of inventory, materials, property and equipment in the ordinary course of business and (C) Investments permitted by Sections 6.05(f) and 6.05(h) or (ii) enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose . For the avoidance of (or agree to do any of the foregoing at any future time) all or any part of its property or assets (other than inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intodoubt, the Borrower so long as (i) the Borrower is the surviving corporation of Loan Parties will not, nor will they permit any such mergerSubsidiary to, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) acquire any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the The Borrower will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease or otherwise dispose of (its property or assets or agree to do any so at a future time except the following, without duplication, shall be expressly permitted:
(i) Specified Sales;
(ii) the sale, transfer, lease or other disposition of the foregoing at any future time) all or any part of its property or assets (other than inventory A) to an unrelated party not in the ordinary course of businessbusiness (other than Specified Sales), including where and to the extent that they are the result of a Recovery Event or (B) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Borrower or any of its Subsidiaries, as appropriate, in its reasonable discretion, so long as and the net proceeds therefrom are used to repair or replace damaged property or to purchase or otherwise acquire new assets or property, provided that such purchase or acquisition is committed to within 180 days of receipt of the net proceeds and such purchase or acquisition is consummated within 270 days of receipt of such proceeds;
(iii) the sale, lease or transfer of property or assets (at fair market value) from the Borrower to any Guarantor;
(iv) the sale, lease or transfer of property or assets (at fair market value) from a Guarantor to another Guarantor; and
(v) the sale, lease or transfer of property or assets not to exceed $1,000,000 in the aggregate in any fiscal year; provided, that in each case at least 75% of the consideration received therefor by the Borrower or any such Subsidiary is in the form of cash or Cash Equivalents; provided, further, that with respect to sales of inventory on consignment in assets permitted hereunder only, the ordinary course Administrative Agent shall be entitled, without the consent of business)the Required Lenders, or enter into any partnershipsto release its Liens relating to the particular assets sold; or
(i) purchase, joint ventures or sale-leaseback transactions, or purchase lease or otherwise acquire (in one a single transaction or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, materials leases, materials, property and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
as otherwise limited or prohibited herein) or (aii) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course any transaction of business with respect to real merger or personal property;
consolidation, except for (bA) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
Investments or acquisitions (cincluding Permitted Acquisitions) the advances, investments and loans permitted pursuant to Section 9.05;
6.5, and (dB) Holdings and its Subsidiaries may sell the merger or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of Credit Party with and into another Credit Party, provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is will be the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;corporation.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Parent will not, and nor will not it permit any of their respective its Subsidiaries to:
(a) except in connection with a disposition of assets permitted by the terms of subsection (c) below, wind updissolve, liquidate or dissolve its affairs or wind up their affairs;
(b) enter into any transaction of merger or consolidation; provided, however, that, so long as no Default has occurred and is continuing or conveywould be directly or indirectly caused as a result thereof, (i) the Parent or the Borrower may merge or consolidate with any of the Borrower, the Parent or its Subsidiaries, as applicable, provided that the Borrower or the Parent is the surviving entity and (ii) any Subsidiary of the Parent (other than the Borrower) may merge or consolidate with any other Subsidiary of the Parent, provided that if either Subsidiary is a Guarantor the surviving entity shall be or become a Guarantor;
(c) sell, lease lease, transfer or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any a substantial part of its property or assets Property (including without limitation pursuant to any sale and leaseback transaction) other than (i) the sale or lease of inventory in the ordinary course of businessbusiness for fair consideration, including sales (ii) the sale or disposition of inventory on consignment machinery and equipment no longer used or useful in the ordinary course conduct of business), or enter into any partnerships, joint ventures or sale-leaseback transactions, or purchase or otherwise acquire such Person’s business and (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(ciii) the advances, investments and loans permitted pursuant to Section 9.05;sale of accounts in connection with a Permitted Receivables Financing; or
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in unless such action is approved by the ordinary course board of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days directors of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings Person and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default has occurred and is continuing or would be directly or indirectly caused as a result thereof, (i) purchase or otherwise acquire any Equity Interests of any Person in excess of 10% of the Equity Interests of such Person, (ii) purchase or otherwise acquire any assets of any Person in excess of 10% of the value of the assets of such Person, and (iii), except as otherwise provided in subsection (b) above, merge or consolidate with such Person. For purposes of this Section 6.04 only, a sale, transfer, conveyance, lease or other disposition of assets shall be deemed to be a “substantial part” of its Property only if the value of such assets, when added to the value of all other assets sold, transferred, conveyed, leased or otherwise disposed of by the Parent or any Subsidiary (other than in the normal course of business) during the same fiscal year, exceeds 15% of the Parent’s Consolidated Total Assets determined as of the end of the immediately preceding fiscal year. As used in the preceding sentence, the term “value” shall mean, with respect to any asset disposed of, the greater of such asset’s book or fair market value as of the date of disposition, with “book value” being the value of such asset as would appear immediately prior to such disposition on a consolidated balance sheet of the Parent prepared in accordance with GAAP. Upon the sale of assets or the sale of Equity Interests of a Guarantor as otherwise permitted by this Section 6.04, so long as no Event of Default then exists shall occur or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurredbe continuing, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery on behalf of the Permitted Acquisition NoticeLenders, a certificate of shall release such Guarantor from its obligations under the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Loan Documents.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the The Borrower will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease or otherwise dispose of (its property or assets or agree to do any so at a future time except the following, without duplication, shall be expressly permitted:
(i) Specified Sales;
(ii) the sale, transfer, lease or other disposition of the foregoing at any future time) all or any part of its property or assets (other than inventory A) to an unrelated party not in the ordinary course of businessbusiness (other than Specified Sales), including where and to the extent that they are the result of a Recovery Event or (B) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Borrower or any of its Subsidiaries, as appropriate, in its reasonable discretion, so long as the net proceeds therefrom are used to repair or replace damaged property or to purchase or otherwise acquire new assets or property, PROVIDED that such purchase or acquisition is committed to within 180 days of receipt of the net proceeds and such purchase or acquisition is consummated within 270 days of receipt of such proceeds;
(iii) the sale, lease or transfer of property or assets (at fair value) between the Borrower and any Guarantor;
(iv) the sale, lease or transfer of property or assets not to exceed $1,000,000 in the aggregate in any fiscal year; PROVIDED, that in the case of a sale, lease or transfer pursuant to Section 6.5(a)(ii)(A) and Section 6.5(a)(iv), at least 75% of the consideration received therefor by the Borrower or any such Subsidiary is in the form of cash or Cash Equivalents and in the case of a sale pursuant to Section 6.5(a)(v), 100% of the consideration received therefor by the Borrower or any Subsidiary is in the form of cash or Cash Equivalents; PROVIDED, FURTHER, that with respect to sales of inventory on consignment in assets permitted hereunder only, the ordinary course Administrative Agent shall be entitled, without the consent of business)the Required Lenders, or enter into any partnershipsto release its Liens relating to the particular assets sold; or
(i) purchase, joint ventures or sale-leaseback transactions, or purchase lease or otherwise acquire (in one a single transaction or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, materials leases, materials, property and equipment in the ordinary course of business) of any Person, except as otherwise limited or prohibited herein); PROVIDED, that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists shall have occurred and be continuing or would result therefrom therefrom, the Borrower may acquire all or a majority of the Capital Stock or other ownership interest in any Person (including in a similar or related line of business and which has earnings before interest, taxes, depreciation and amortization for the prior four fiscal quarters in an amount greater than $0) or all or a substantial portion of the assets, property and/or operations of a Person (in a similar or related line of business and which had earnings before interest, taxes, depreciation and amortization for the prior four fiscal quarters in an amount greater than $0); PROVIDED, however, that both before and after giving effect to any such acquisition otherwise permitted hereunder, (A) the Leverage Ratio shall not exceed 2.5 to 1.0, on a pro forma effect basis and (B) there shall be not less than $7,500,000 of availability under Section 2.1 or (ii) enter into any transaction of merger or consolidation, except for (A) investments or acquisitions permitted pursuant to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j)Section 6.6, and (iiB) Holdings the merger or consolidation of a Credit Party with and into another Credit Party, PROVIDED that if the Borrower shall have given is a party thereto, the Agents and Borrower will be the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;surviving corporation.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and None of the Borrower will not, and will not permit any of Credit Parties or their respective Subsidiaries to, wind upwill:
(a) dissolve, liquidate or dissolve wind up its affairs affairs, or enter into any transaction of merger or consolidation; provided, or conveyhowever, sellthat, 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists would be directly or would indirectly caused as a result therefrom thereof, (including i) Speedway Motorsports may merge or consolidate with any of its Subsidiaries provided Speedway Motorsports is the surviving corporation (ii) Speedway Funding may merge or consolidate with any Subsidiary of Speedway Motorsports, provided Speedway Funding is the surviving entity, or (iii) any Subsidiary may merge or consolidate with any other Subsidiary (other than Speedway Funding), provided that, if either Subsidiary is a Credit Party, the surviving corporation or entity shall be a Credit Party.
(b) sell, lease, transfer or otherwise dispose of any Property other than (i) the sale of inventory in the ordinary course of business for fair consideration, (ii) the sale or disposition of machinery and equipment no longer used or useful in the conduct of such Person’s business, (iii) subject to the terms of Section 8.8 and 8.12, other sales and dispositions provided that (A) after giving pro forma effect to such acquisition sale or other disposition, the aggregate book value of assets sold or otherwise disposed of pursuant to this clause (iii) since the Closing Date does not exceed $10,000,000 and --- ----- (B) after giving effect on a Pro Forma Basis to such sale or other disposition, no Default or Event of Default would exist hereunder; or
(c) except as otherwise permitted by Section 8.4(a) or 8.5, acquire all or any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as portion of the first day Capital Stock or securities of any other Person or purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) all or any substantial part of the most recently completed Test Period (including Property of any other Permitted Acquisition that occurredPerson provided, and related Indebtedness that was incurredhowever, during that, so long as no Default or subsequent to such Test Period))Event of Default would be caused as a result thereof on an actual or Pro Forma Basis, Holdings then any Credit Party or any of its Wholly Owned Subsidiaries Subsidiary may consummate a Permitted Acquisition; provided that (i) Holdings acquire an interest in additional motor speedways, whether by merger, stock purchase or asset purchase; provided, however, that the aggregate Cash Consideration paid for such acquisitions in any fiscal year shall have -------- delivered to not exceed 35% of the Administrative Agent, Consolidated Net Worth of Speedway Motorsports at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j)immediately preceding fiscal year end, and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect consummate other acquisitions consistent with the business nature of Holdings the Borrowers’ business, whether by merger, stock purchase or any of its Subsidiaries;asset purchase; provided, however, that the Cash Consideration paid for such other acquisitions shall not exceed $25,000,000 in the aggregate.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the The ------------------------------------------------------ Borrower will not, and will not permit any of their respective Subsidiaries its Consolidated Entities 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any PersonPerson or agree to do any of the foregoing at any future time, except that the following shall be permitted:
(a) Holdings the Borrower and its Subsidiaries maythe Guarantors may lease, as lessee or lessor, enter into operating leases or license, as licensee or licensor, real or personal property in the ordinary course of business and otherwise in compliance with respect this Agreement, so long as any such lease or license by the Borrower or any such Guarantor in its capacity as lessor or licensor, as the case may be, does not prohibit the granting of a Lien by the Borrower or any such Guarantor pursuant to real the respective Security Document in the property covered by such lease or personal propertylicense, as the case may be;
(b) Capital Expenditures by Holdings the Borrower and its Subsidiaries the Guarantors to the extent not in violation of Section 9.077.08;
(c) the advances, investments and loans permitted pursuant to Section 9.057.05;
(d) Holdings and its Subsidiaries the Borrower may sell or discount, in each case without recourse, accounts receivable receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings the Borrower and its Subsidiaries any of the Guarantors may sell or exchange specific items of machinery or equipment, so long as the proceeds purpose of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are are, in the reasonable business judgment of the Borrower and or such Guarantor, the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings the Borrower and its Subsidiaries any of the Guarantors may, in the ordinary course of business, license, license as licensee or licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons and to one anotherPersons, so long as any such license by Holdings the Borrower or its Subsidiaries any such Guarantor in its capacity as licensor is permitted to be assigned pursuant to the relevant Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings the Borrower or any of its Subsidiaries such Guarantor pursuant to the relevant Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary the Borrower and each of the Borrower Guarantors may transfer sell assets, provided that the aggregate sale proceeds from all assets subject to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors sales pursuant to the Security Documents in the assets so transferred this clause (g) shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer)not exceed $25,000;
(h) so long as no Default or Event of Default then exists or would result therefrom, the Borrower may form an affiliation with any Wholly Owned Affiliated Business (by management agreement or stockholder transfer or designation or similar agreement) and any Affiliated Business may acquire the assets of, or form an affiliation with, any Practice Group (any such acquisition or affiliation permitted by this clause (h), a "Permitted Acquisition"); provided that (i) such Affiliated Business or -------- Practice Group (and the assets so acquired), as the case may be, was, immediately, prior to such acquisition or affiliation, engaged (or used) primarily in the businesses permitted pursuant to Section 7.01, (ii) any Liens assumed in connection with such acquisition or affiliation are otherwise permitted under Section 7.03, (iii) the Borrower shall have given the Agent and the Banks at least 10 Business Days prior written notice of such Permitted Acquisition, (iv) if the Person so acquired is an Affiliated Business, (x) the Borrower and such Affiliated Business shall have entered into a Services Agreement in form and substance satisfactory to the Required Banks, (y) the Borrower and the physician designated as the sole shareholder of such Affiliated Business shall have entered into a Sole Shareholder Designation Agreement in form and substance satisfactory to the Required Banks and (z) all of the provisions of Section 7.13 are complied with in respect of such Affiliated Business and (v) the consideration paid in connection with any such Permitted Acquisition shall consist solely of cash, Borrower Subordinated Notes, Short-Term Seller Notes and/or Class A Common Stock of the Borrower;
(i) the assets of any Guarantor may be transferred to the Borrower; and
(j) any Subsidiary of the Borrower may merge with and into, into the Borrower or be dissolved or liquidated into, any Wholly-Owned Subsidiary of the Borrower so long as (i) the Borrower or such Wholly-Owned Subsidiary is the surviving corporation of any such merger, dissolution or liquidation merger and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary so merged shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of . To the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of extent the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of Required Banks waive the provisions of this paragraph (j), and (ii) Holdings Section 7.02 with respect to the sale or the Borrower shall have given the Agents and the Banks at least 30 days prior notice other disposition of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings Collateral, or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Collateral is sold as permitted by this
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the The Borrower will not, and will not permit any of their respective its Subsidiaries to, wind up, liquidate or dissolve its affairs affairs, or enter into any transaction of merger or consolidation, or conveysell or otherwise dispose of any of its property or assets (including the sale of capital stock of any of its Subsidiaries, sellbut excluding any sale or disposition of property or assets in the ordinary course of business), or purchase, lease or otherwise dispose acquire (in one transaction or a series of related transactions) all or any part of the property or assets of any Person (excluding any purchases, leases or other acquisitions of property or assets in, and for use in, the ordinary course of business) or agree to do any of the foregoing at any future time) all or any part of its property or assets (other than inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal propertyThe Transaction;
(b) Capital Expenditures by Holdings the Borrower and its Subsidiaries to the extent not in violation of permitted by Section 9.077.05;
(c) the advancesThe investments, investments acquisitions and loans transfers or dispositions of property permitted pursuant to Section 9.057.06;
(d) Holdings and its Subsidiaries may sell The merger or discount, in each case without recourse, accounts receivable arising in the ordinary course consolidation or liquidation of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and knowany Wholly-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower with or to any other Wholly into another Wholly-Owned Subsidiary of the Borrower, so long as (i) if the transferee is a SubsidiaryPROVIDED that no Subsidiary may merge, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit consolidate or liquidate with or into SNCHC or any of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer)its Subsidiaries;
(he) Any Regulated Insurance Company may enter into any Wholly Owned Subsidiary Insurance Contract, Reinsurance Agreement or Retrocession Agreement in the ordinary course of business in accordance with its normal underwriting, indemnity and retention policies, PROVIDED that, except as provided below, no Regulated Insurance Company shall enter into any Financial Reinsurance Agreements after the Borrower Initial Borrowing Date, PROVIDED FURTHER, that Regulated Insurance Companies may merge with and into, or be dissolved or liquidated into, the Borrower enter into Financial Reinsurance Agreements constituting loss portfolio transfers and/or retrospective aggregate excess of loss reinsurance contracts so long as (i) the Borrower is the surviving corporation of any aggregate annual premiums associated with such merger, dissolution or liquidation Financial Reinsurance Agreements entered into by all Regulated Insurance Companies shall not exceed $10,000,000 and (ii) such Financial Reinsurance Agreements do not meet the security interests granted conditions for reinsurance accounting as provided in FASB 113 solely because they relate to losses incurred in prior years;
(f) The Borrower or any of its Subsidiaries may enter into leases of property or assets in the Collateral Agent for the benefit ordinary course of business not otherwise in violation of this Agreement;
(g) each of the Secured Creditors Borrower and its Subsidiaries may sell assets (including, without limitation, the capital stock of BIC acquired pursuant to the Security Documents Acquisition), PROVIDED that (w) each such sale shall be for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the Borrower), (x) each such sale results in consideration in the form of cash, (y) the aggregate sale proceeds from all assets subject to such sales pursuant to this clause (g) in any fiscal year shall not exceed 10% of the Consolidated Net Worth of the Borrower as of the first day of such Wholly Owned Subsidiary fiscal year provided that (i) on a PRO FORMA basis (the PRO FORMA adjustments made by the Borrower pursuant to this clause (i) shall remain in full force and effect and perfected (be subject to at least the same extent reasonable satisfaction of the Administrative Agent) determined as in effect immediately if such asset sale had been consummated on the date occurring twelve months prior to the last day of the most recently ended fiscal quarter of the Borrower with respect to any asset sale, the Borrower and its Subsidiaries would have been in compliance with Sections 7.10 through 7.13 of this Agreement as of, or for the relevant period ended on, the last day of such mergerfiscal quarter and (ii) on a PRO FORMA basis (the PRO FORMA adjustments made by the Borrower pursuant to this clause (ii) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such asset sale had been consummated, dissolution or liquidationthe covenants contained in Sections 7.10 through 7.13 will continue to be met for the twelve-month period following the last day of the fiscal quarter ended after the date of the consummation of such asset sale and (z) to the extent required by Section 3.02(i)(b), the Net Available Proceeds therefrom are applied to repay Loans as provided in Section 3.02(i)(b);
(ih) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as Asset Restructuring Transaction; and
(i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom therefrom, the Borrower and its Subsidiaries may acquire assets or the capital stock of any Person (including giving pro forma effect any such acquisitions permitted by this clause (i), a "Permitted Acquisition"), PROVIDED, that (i) such Person (or the assets so acquired) was, immediately prior to such acquisition and --- ----- any additional Indebtedness resulting therefrom acquisition, engaged (or incurred or assumed used) primarily in connection therewith as if the businesses permitted pursuant to Section 7.01(a), (ii) each such acquisition had occurred shall be for an amount not greater than the fair market value thereof (as determined in good faith by the Board of Directors of the Borrower), (iii) the aggregate amount expended by the Borrower and such Indebtedness had been incurred its Subsidiaries for Permitted Acquisitions shall not in any fiscal year exceed 10% of the Consolidated Net Worth of the Borrower and its Subsidiaries as of the first day of such fiscal year, (iv) on a PRO FORMA basis (the PRO FORMA adjustments made by the Borrower pursuant to this clause (iv) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such acquisition had been consummated on the date occurring twelve months prior to the last day of the most recently completed Test Period ended fiscal quarter of the Borrower, the Borrower and its Subsidiaries would have been in compliance with Sections 7.10 through 7.13 of this Agreement as of, or for the relevant period ended on, the last day of such fiscal quarter, (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent v) on a PRO FORMA basis (the PRO FORMA adjustments made by the Borrower pursuant to such Test Period)), Holdings or any this clause (v) shall be subject to the reasonable satisfaction of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent) determined as if such acquisition had been consummated, at the time of delivery covenants contained in Sections 7.10 through 7.13 will continue to be met for the twelve-month period following the last day of the Permitted Acquisition Notice, a certificate fiscal quarter ended after the date of the Chief Financial Officer consummation of Holdings showing compliance such acquisition and (in reasonable detail as vi) no such acquisition shall be consummated on a "hostile" basis (I.E., without the consent of the Board of Directors of the Person to pro forma calculationsbe acquired). To the extent the Required Banks (or all the Banks to the extent required by Section 11.12) with all of waive the provisions of this paragraph Section 7.02 with respect to the disposition of any Collateral, or any Collateral is disposed of as permitted by this Section 7.02, (j), i) such Collateral in each case shall be sold free and clear of the Liens in favor of the Secured Creditors created by the Pledge Agreement and (ii) Holdings if such Collateral includes all of the capital stock of a Subsidiary, such capital stock shall be released from the Pledge Agreement and such Subsidiary shall be released from the Subsidiary Guaranty; and the Administrative Agent and the Collateral Agent shall be authorized to take such actions as the Administrative Agent or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering Collateral Agent reasonably deems appropriate in any material respect with the business of Holdings or any of its Subsidiaries;connection therewith.
Appears in 1 contract
Samples: Credit Agreement (Superior National Insurance Group Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, and nor will not they permit any of their respective Subsidiaries Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidationaffairs, or conveysell, selltransfer, 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 (each a “Disposition”) or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:
(A) the sale, transfer, lease or other than disposition of inventory and materials in the ordinary course of business and (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(ii) the sale, transfer or other disposition of property or assets to an unrelated party not in the ordinary course of business where and to the extent that they are the result of a Recovery Event;
(iii) the sale, lease, transfer or other disposition of (A) machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their Subsidiaries and (B) obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(iv) the sale, including sales lease or transfer of inventory on consignment property or assets from one Credit Party to another Credit Party or dissolution of any Credit Party to the extent any and all assets are distributed to another Credit Party;
(v) the termination of any Hedging Agreement;
(vi) Dispositions of equipment or real property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property within twelve (12) months of such Disposition or (B) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property within 12 months of such Disposition;
(vii) the licensing of Intellectual Property in the ordinary course of businessbusiness consistent with past practice;
(viii) the sale, lease or transfer of property or assets not to exceed $100,000,000 in the aggregate in any fiscal year;
(ix) the sale, lease or transfer of property or assets as part of a Sale and Leaseback Transaction, in an aggregate amount not to exceed $100,000,000 during the term of this Agreement;
(x) the merger of a Credit Party or a Subsidiary thereof with another Credit Party or a Subsidiary thereof to the extent permitted by Section 6.4(b)(ii) below; and
(xi) Dispositions of Equity Interests in Permitted JVs pursuant to the terms of the joint venture or equivalent agreements governing such Permitted JVs so long as such joint venture or equivalent agreements are not solely between Persons that are Credit Parties, Subsidiaries or Affiliates of Credit Parties; provided that (A) after giving effect to any Disposition pursuant to clauses (viii) and (xi) above, the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.9 hereof, recalculated for the most recently ended month for which information is available, and (B) with respect to clauses (v), (vi), (viii) and (xi) above, no Default or enter into any partnershipsEvent of Default shall exist or shall result therefrom; or
(b) (i) purchase, joint ventures or sale-leaseback transactions, or purchase lease or otherwise acquire (in one a single transaction or a series of related transactions) any part of the property or assets (of any Person, other than (A) Permitted Investments and (B) except as otherwise limited or prohibited herein, purchases or other acquisitions of inventory, materials materials, property and equipment in the ordinary course of business, or (ii) consummate any transaction of any Personmerger or consolidation, except that the following shall be permitted:
for (aA) Holdings and its Subsidiaries may, as lessee Investments or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans acquisitions permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, 6.5 so long as the proceeds of each Credit Party subject to such sale merger or exchange consolidation is used to acquire the surviving entity, (and results within 180 days of such sale B) (y) the merger or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings Subsidiary that is not a Credit Party with and into a Credit Party; provided that such Credit Party will be the surviving entity and (z) the merger or any consolidation of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of a Credit Party with and into another Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is will be the surviving corporation of any such merger, dissolution or liquidation and (iiC) the security interests granted to the Collateral Agent for the benefit merger or consolidation of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned a Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge that is not a Credit Party with and into, or be dissolved or liquidated into, any Wholly Owned into another Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary that is not a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Credit Party.
Appears in 1 contract
Samples: Credit Agreement (Mednax, Inc.)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the The Borrower will not, and nor will not it permit any of their respective Subsidiaries Restricted Subsidiary to, wind up, liquidate or dissolve its affairs or ,
(a) enter into any transaction of merger or consolidationconsolidation or amalgamation, or conveyliquidate, sell, lease wind up or otherwise dispose of dissolve itself (or agree to do suffer any of the foregoing at liquidation or dissolution);
(b) acquire any future time) all or any part of its property business or assets from, or Capital Stock of, or be a party to any acquisition of, any Person except:
(i) for purchases of inventory and other than inventory assets to be sold or used in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(bii) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Investments permitted under Section 9.076.5 hereof; and
(iii) Permitted Acquisitions;
(c) the advancesconvey, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell sell, lease, transfer or discountotherwise dispose of, in each case one transaction or a series of transactions, any part of its business or assets, whether now owned or hereafter acquired (including, without recourselimitation, accounts receivable arising in the ordinary course of businessreceivables and leasehold interests), but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);excluding:
(i) any Wholly Owned Subsidiary Excluded Disposition;
(ii) obsolete or worn-out Property, tools or equipment no longer used or useful in its business (other than any Excluded Disposition) or real Property no longer used or useful in its business;
(iii) any sale, lease or transfer of assets from a Credit Party to another Credit Party;
(iv) any sale of Transferred Assets by such Person to a Receivables Financier in connection with a Permitted Receivables Financing; and
(v) other assets so long as the aggregate amount thereof sold or otherwise disposed of in any single fiscal year by the Borrower and its Restricted Subsidiaries shall not have a book value in excess of ten percent of the book value of the total assets of the Borrower may merge and its Restricted Subsidiaries owned on the first day of such fiscal year; provided, that in each case with respect to subsections (v) and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary (vi) above at least 85% of the consideration received therefor by the Borrower so long as (i) or any such Wholly Owned Restricted Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets form of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution cash or liquidation);Cash Equivalents; and
(jd) Notwithstanding the foregoing provisions of this Section 6.4, so long as no Default or Event of Default then exists or would result therefrom (including shall have occurred and be continuing, and after giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day succeeding transactions, no Default or Event of Default would exist hereunder and so long as the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent Liens created under the Security Documents continue to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that be in effect:
(i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery any Restricted Subsidiary of the Permitted Acquisition Notice, a certificate of Borrower may be merged or consolidated with or into: (A) the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or Borrower if the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;be the
Appears in 1 contract
Samples: Credit Agreement (Suiza Foods Corp)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, nor will they permit any Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, or sell, transfer, lease or otherwise dispose of its property or assets or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:
(A) the sale, transfer, lease, licensing or other disposition of inventory and will not permit materials in the ordinary course of business and (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(ii) sales, transfers, leases or other dispositions for which such Credit Party has received or such Subsidiary has received, any cash insurance proceeds or condemnation or expropriation award with respect to such property or assets to the extent Net Cash Proceeds received or awarded are reinvested or used to make prepayment required by the Senior Debt Documents;
(iii) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their respective Subsidiaries toSubsidiaries;
(iv) the sale, wind uplease or transfer of property or assets from one Credit Party to another Credit Party, liquidate or dissolve its affairs the sale, lease or transfer of property or assets from one Subsidiary who is not a Credit Party to a Credit Party or another Subsidiary who is not a Credit Party;
(v) the termination of any Hedging Agreement; and
(vi) the sale, lease or transfer of property or assets not to exceed $2,300,000 in the aggregate in any fiscal year; provided that (A) with respect to clauses (i)(A), (ii), (iii) and (vi) above, at least 75% of the consideration received therefor by the Credit Parties or any such Subsidiary shall be in the form of cash or Cash Equivalents (except with respect to the sale, lease, transfer or other disposition of machinery, parts and equipment to the extent that such property is exchanged for credit against the purchase price of property), (B) after giving effect to any Asset Disposition pursuant to clause (vi) above, the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.9 hereof, and (C) with respect to clauses (v) and (vi) above, no Default or Event of Default shall exist or shall result therefrom; or
(i) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person, other than (A) the Acquisition, (B) Permitted Acquisitions and (C) except as otherwise limited or prohibited herein, purchases, leases or other acquisitions of inventory, materials, property and equipment in the ordinary course of business, or (ii) enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of except for (or agree to do any of the foregoing at any future time) all or any part of its property or assets (other than inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(cA) the advancesAcquisition, investments and loans (B) Permitted Acquisitions, (C) Investments or acquisitions permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, 6.5 so long as the proceeds of each Credit Party subject to such sale merger or exchange consolidation is used to acquire the surviving entity, (and results within 180 days of such sale D) (y) the merger or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings Subsidiary that is not a Credit Party with and into a Credit Party; provided that such Credit Party will be the surviving entity and (z) the merger or any consolidation of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of a Credit Party with and into another Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is will be the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j)corporation, and (iiE) Holdings the merger or the Borrower shall have given the Agents consolidation of a Subsidiary that is not a Credit Party with and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice into another Subsidiary that is not a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Credit Party.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, nor will they permit any Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, or sell, transfer, lease or otherwise dispose of its property or assets or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:
(A) the sale, transfer, lease or other disposition of inventory and will not permit materials in the ordinary course of business and (B) the conversion of cash into Corporate Investment Policy Investments and Corporate Investment Policy Investments into cash;
(ii) Recovery Events;
(iii) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their respective Subsidiaries;
(iv) the sale, lease, transfer or other disposition of property or assets (at fair value) (A) between US Credit Parties, (B) between Foreign Credit Parties and (C) between Foreign Subsidiaries to(other than Foreign Credit Parties); provided that in no event shall a Credit Party sell, wind uptransfer or otherwise dispose of any Intellectual Property to a Person that is not a Credit Party, liquidate except that the Foreign Borrower may license such Intellectual Property in the ordinary course of business, without the prior written consent of the Administrative Agent;
(v) the dissolution or dissolve winding up of any Subsidiary of the Company that is not a Credit Party; provided, that the assets of any such Subsidiary shall be transferred to another Subsidiary of the Company;
(vi) the sale, lease or transfer of the German Property;
(vii) the sale, lease or transfer of the Belgian Property;
(viii) the dissolution or winding up of any Credit Party (other than a Borrower); provided, that the assets of any such Credit Party shall be transferred to another Credit Party;
(A) the sale or issuance of the Capital Stock of a Foreign Subsidiary (other than a Credit Party) of the Company to any Subsidiary of the Company to the extent not otherwise prohibited under this Credit Agreement or any of the other Credit Documents, (B) the sale or issuance of the Capital Stock of a US Credit Party (other than the Company) to another US Credit Party and (C) the sale or issuance of the Capital Stock of a Foreign Credit Party to a Credit Party;
(x) the merger or consolidation of a Subsidiary of the Company (other than a Borrower) into another Subsidiary of the Company; provided that if either Subsidiary is a Credit Party, the continuing or surviving Person shall be a Credit Party;
(xi) the merger or consolidation of any Subsidiary into the Company; provided that the Company shall be the continuing or surviving entity;
(xii) transactions permitted pursuant to Sections 6.1, 6.5 and 9.22 to the extent not already permitted pursuant to this Section 6.4(a);
(xiii) the sale, lease or transfer of property or assets not to exceed $500,000 in the aggregate in any fiscal year; and
(xiv) the sale of any Foreign Subsidiary (not including any Foreign Credit Party) which the Company has demonstrated to the reasonable satisfaction of the Administrative Agent has less than $10,000,000 in total annual revenue. provided that (A) with respect to clauses (i)(A), (ii), (iii), and (xi) above, at least 75% of the consideration received therefor by the Credit Parties or any such Subsidiary shall be in the form of cash or Corporate Investment Policy Investments, and (B) with respect to clause (iv), no Default or Event of Default shall exist or shall result therefrom; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall, without the consent of the Required Lenders, release its affairs Liens relating to the particular assets sold; or
(b) (i) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person, other than (A) Permitted Acquisitions and (B) except as otherwise limited or prohibited herein, purchases, leases or acquisitions of inventory, materials, property and equipment in the ordinary course of business, or (ii) enter into any transaction of merger or consolidation, except for (A) Investments 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunderSections 6.4(a) and does not otherwise prohibit 6.5 and (B) the granting merger or consolidation of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge Credit Party with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisitioninto another Credit Party; provided that (i) Holdings shall have -------- delivered to if the Administrative AgentCompany is a party thereto, at the time of delivery of Company will be the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;surviving corporation.
Appears in 1 contract
Samples: Credit Agreement (Lionbridge Technologies Inc /De/)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, nor will they permit any Subsidiary to,
(a) dissolve or liquidate or sell, transfer, lease or otherwise dispose of its property or assets or agree to do so at a future time (other than agreements to dispose of property or assets with a fair market value less than $1,000,000 individually or $5,000,000 in the aggregate during the term of this Agreement), except the following, without duplication, shall be expressly permitted:
(i) (A) the sale, transfer, lease, sublease or other disposition of property in the ordinary course of business; (B) the conversion of cash into Cash Equivalents and will not permit of Cash Equivalents into cash and (C) (1) the licensing out of intellectual property and other rights and (2) the sale, transfer, licensing or other disposition of Off-Shore Rights to an International Holding Company;
(ii) Recovery Events for which such Credit Party or such Subsidiary has received any cash insurance proceeds or condemnation or expropriation award with respect to such property or assets;
(iii) the sale, lease, sublease, transfer or other disposition of property, machinery, parts and equipment and other goods no longer used or useful in, or consistent with the Borrower’s plans for, the conduct of the business of the Credit Parties or any of their respective Subsidiaries toSubsidiaries;
(iv) the sale, wind uplease or transfer of property or assets from the Borrower or any Subsidiary to a Credit Party or from one Credit Party to another Credit Party or from any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(v) the termination of any Hedging Agreement;
(vi) the sale of Investments held in securities accounts;
(vii) the liquidation or dissolution of any Subsidiary that is not a Credit Party if the assets of such Subsidiary are transferred to a Credit Party after the repayment of all Indebtedness and other obligations of such Subsidiary upon liquidation or dissolution;
(viii) the disposition of any property or assets for purposes of making a Permitted Investment; and
(ix) the sale, liquidate lease or dissolve transfer of property or assets not to exceed (A) $50,000,000 in net cash proceeds in the aggregate during any Fiscal Year and (B) $100,000,000 in net cash proceeds in the aggregate during the term of the Agreement; provided that (A) with respect to clauses (i)(A), (ii), (iii), (vi) and (ix) above, except for transactions involving assets with a fair market value (as determined by a Responsible Officer) not exceeding $2,000,000 in any fiscal year, at least 75% of the consideration received therefor by the Credit Parties or any such Subsidiary shall be in the form of cash or Cash Equivalents, (B) after giving effect to any Asset Disposition pursuant to clause (ix) above, the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.9 hereof, recalculated for the most recently ended quarter for which information is available, and (C) no Default or Event of Default shall exist or shall result therefrom; provided, further, that with respect to dispositions of assets permitted hereunder only, the Administrative Agent shall be entitled, without the consent of any Lender, to release its affairs Liens relating to the particular assets subject to such disposition; or
(b) (i) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) all or substantially all of the property or assets of any Person, other than (A) Permitted Acquisitions and (B) except as otherwise limited or prohibited herein, purchases or other acquisitions of inventory, materials, property and equipment in the ordinary course of business, or (ii) enter into any transaction of merger or consolidation, except for (A) in connection with Investments 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, 6.5 so long as the proceeds of each Credit Party subject to such sale merger or exchange consolidation is used to acquire (and results within 180 days of such sale the surviving entity or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent surviving entity will become a Credit Party concurrently with effectiveness of the item of equipment so sold merger or exchanged;
consolidation, (fB) Holdings and its Subsidiaries may, in (y) the ordinary course of business, license, as licensor merger or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings Subsidiary that is not a Credit Party with and into a Credit Party; provided that such Credit Party will be the surviving entity and (z) the merger or any consolidation of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of a Credit Party with and into another Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as will be the surviving corporation, (iC) the Borrower merger or consolidation of a Subsidiary that is the surviving corporation of any such merger, dissolution or liquidation not a Credit Party with and into another Subsidiary that is not a Credit Party and (iiD) any merger or consolidation, the security interests granted purpose or effect of which is to the Collateral Agent for the benefit of the Secured Creditors effect, all or in part, a disposition permitted pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution Section 6.4(a) or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors an Investment permitted pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Section 6.5.
Appears in 1 contract
Samples: Credit Agreement (Eclipsys Corp)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, nor will they permit any Restricted Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, or sell, transfer, lease or otherwise dispose of its property or assets or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:
(i) any Restricted Subsidiary of the Company may be liquidated, wound up or dissolved, and will not permit all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of to any Credit Party;
(A) the sale, transfer, lease or other disposition of inventory and materials in the ordinary course of business and (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(iii) Recovery Events;
(iv) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their respective Restricted Subsidiaries;
(v) the sale, lease or transfer of property or assets from a Credit Party to another Credit Party;
(vi) in order to resolve disputes that occur in the ordinary course of business, Holdco and its Restricted Subsidiaries tomay discount or otherwise compromise for less than the face value thereof, wind upnotes or accounts receivable;
(vii) Holdco and its Restricted Subsidiaries may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of such Subsidiary if required by applicable law;
(viii) the grant by Holdco or any of its Restricted Subsidiaries in the ordinary course of business of a license to any Person for the use of any Intellectual Property owned by Holdco or any of its Restricted Subsidiaries;
(ix) the unwinding of any derivative instruments or agreements;
(x) the sale or disposition of Investments under clauses (f), liquidate (j), (k) and (n) of the definition of Permitted Investments (other than Investments received in connection with any Asset Disposition permitted by subsection (xiii) below);
(xi) the sublease of any real or dissolve personal property in the ordinary course of business;
(xii) sales, assignments, transfers or dispositions of accounts receivable in the ordinary course of business for purposes of collection; or
(xiii) sales of revenue-producing assets (or of all of the outstanding Capital Stock of a Subsidiary that owns such assets):
(A) to the extent the Attributable Revenues of all such assets (and Subsidiaries) transferred in all such asset sales during any period of 365 consecutive days does not exceed 16.5% of Pro Forma Revenues for the most recent four fiscal quarter period for which Pro Forma Revenues can then be determined; provided that (1) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof and (2) the proceeds of such asset sales shall be applied as required by subsection 2.3(b)(i); or
(B) to the extent the Attributable Revenues of all assets (and Subsidiaries) transferred in all such asset sales during any period of 365 consecutive days exceeds 16.5% but does not exceed 33% of Pro Forma Revenues for the most recent four fiscal quarter period for which Pro Forma Revenues can then be determined; provided that (1) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof, (2) the consideration received in connection with all asset sales made pursuant to this clause (B), when added to the consideration received in connection with all asset sales made pursuant to clause (A) above, shall be not less than a multiple of 7 times the Attributable EBITDA of all assets (and Subsidiaries) transferred in all such asset sales in the aggregate during such 365-day period and (45) the proceeds of such asset sales shall be applied as required by subsection 2.3(b)(i); provided that after giving effect to any Asset Disposition pursuant to clause (xii) above, (1) the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenant set forth in Section 5.9 hereof, recalculated for the most recently ended month for which information is available, and (2) no Default or Event of Default shall exist or shall result therefrom; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall be entitled, without the consent of the Required Lenders, to release its affairs Liens relating to the particular assets sold; or
(b) (i) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person, other than (A) Permitted Acquisitions and (B) except as otherwise limited or prohibited herein, purchases or other acquisitions of inventory, materials, property and equipment in the ordinary course of business, or (ii) enter into any transaction of merger or consolidation, except for (A) Investments 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
6.5, (dB) Holdings and its Subsidiaries may sell the merger or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge Credit Party with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisitioninto another Credit Party; provided that (i1) Holdings if a Borrower is a party thereto, such Borrower will be the surviving entity (other than in respect of any such transaction between two or more Borrowers, in which case one such Borrower shall have -------- delivered be the surviving entity; provided that (x) such surviving Borrower hereby agrees to the Administrative Agent, at the time of delivery assume and be directly liable for all Credit Party Obligations of the Permitted Acquisition Notice, a certificate Borrower that is merged with and into it upon the consummation of such merger and (y) if the Company is one of the Chief Financial Officer of Holdings showing compliance (Borrowers involved in reasonable detail as to pro forma calculationsthe merger, it shall be the surviving entity) with all of the provisions of this paragraph (j), and (ii2) Holdings if the Company is a party thereto, the Company will be the surviving entity, (C) the merger or consolidation of a Subsidiary that is not a Credit Party with and into a Credit Party; provided, that such Credit Party will be the Borrower shall have given surviving entity and (D) the Agents merger or consolidation of a Subsidiary that is not a Credit Party with and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice into a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons Subsidiary that is not interfering in any material respect with the business of Holdings or any of its Subsidiaries;a Credit Party.
Appears in 1 contract
Samples: Secured Bridge Credit Agreement (GateHouse Media, Inc.)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, nor will they permit any Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, or sell, transfer, lease or otherwise dispose of its property or assets (each a “Disposition”) or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:
(A) the sale, transfer, lease or other disposition of inventory and will materials in the ordinary course of business and (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(ii) the sale, transfer or other disposition of property or assets to an unrelated party not permit in the ordinary course of business where and to the extent that such sale, transfer or other disposition is the result of theft, loss, physical destruction or damage, taking or similar event with respect to any of the Credit Parties or any of their Subsidiaries’ respective Subsidiaries toproperty or assets;
(iii) the sale, wind uplease, liquidate transfer or dissolve other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their Subsidiaries;
(iv) the sale, lease or transfer of property or assets from one Credit Party to another Credit Party or dissolution of any Credit Party (other than the Borrower) to the extent any and all assets of such Credit Party are distributed to another Credit Party;
(v) the termination of any Hedging Agreement;
(vi) the sale, lease, transfer, closure or other disposition of Restaurants and real property related thereto, the termination or non-renewal of leases or the subletting of Restaurants, in each case as determined to be prudent in the reasonable judgment of the senior officers of the Borrower;
(vii) Sale Leaseback transactions to the extent permitted under Section 6.12; and
(viii) the sale, lease or transfer of property or assets not to exceed $2,500,000 in the aggregate in any fiscal year; provided that (A) with respect to clauses (iii), (vi), (vii) and (viii) above, at least 75% of the consideration received therefor by the Credit Parties or any such Subsidiary shall be in the form of cash or Cash Equivalents, assets used in the business or Capital Stock, (B) after giving effect to any Disposition pursuant to clause (vii) above, the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.9 hereof, recalculated for the most recently ended fiscal quarter for which information is available and (C) with respect to clause (vii) above, no Default or Event of Default shall exist or shall result therefrom; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall, without the consent of any Lender, release its affairs Liens relating to the particular assets sold; or
(b) (i) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person, other than (A) Permitted Acquisitions, (B) the lease or acquisition of real property in connection with Permitted Construction Transactions; (C) except as otherwise limited or prohibited herein, purchases or other acquisitions of inventory, materials, property and equipment in the ordinary course of business and (D) Investments permitted by Section 6.5 or (ii) enter into any transaction of merger or consolidation, except for (A) Investments 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, 6.5 so long as the proceeds of each Credit Party subject to such sale merger or exchange consolidation is used to acquire the surviving entity, (and results within 180 days of such sale B) (y) the merger or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings Subsidiary that is not a Credit Party with and into a Credit Party; provided that such Credit Party will be the surviving entity and (z) the merger or any consolidation of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of a Credit Party with and into another Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is will be the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j)corporation, and (iiC) Holdings the merger or the Borrower shall have given the Agents consolidation of a Subsidiary that is not a Credit Party with and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice into another Subsidiary that is not a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Credit Party.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and Each of the Borrower Credit Parties will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs affairs, consolidate or enter into any transaction of merger or consolidationmerge with another Person, or conveysell, selltransfer, lease or otherwise dispose of (its property or assets or agree to do any so at a future time except the following, without duplication, shall be expressly permitted:
(i) the sale, transfer, lease or other disposition of the foregoing at any future time) all or any part of its property or assets (other than inventory and materials in the ordinary course of business;
(ii) the sale, including transfer or other disposition of Cash Equivalents;
(A) the disposition of property or assets as a direct result of a Recovery Event or (B) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Borrower or any of its Subsidiaries, so long as the net proceeds therefrom are used to replace such machinery, parts and equipment or to purchase or otherwise acquire new assets or property within 180 days of receipt of the net proceeds or such longer period, in the case of a Recovery Event, as may be reasonably agreed to by the Administrative Agent;
(iv) the sale, lease or transfer of property or assets (for fair market value) between the Borrower and any Guarantor;
(v) the sale, lease or transfer of property or assets from a Credit Party other than the Borrower to another Credit Party;
(vi) the sale, lease or transfer of property or assets not to exceed $1,000,000 in the aggregate in any fiscal year;
(vii) the voluntary termination of Hedging Agreements;
(viii) the merger or consolidation of a Credit Party with and into another Credit Party; provided that if the Borrower is a party thereto, the Borrower will be the surviving entity; and
(ix) the merger of Universal Manufacturing & Logistics GmbH with and into Blitz 05-106 GmbH. provided, that, in the case of clauses (i), (ii), (iii) and (vi) above, at least 80% of the consideration received therefor by the Borrower or any other Credit Party is in the form of cash (or a receivable which shall result in the payment of cash) or Cash Equivalents; provided, further, that with respect to sales of inventory on consignment in assets permitted hereunder only, the ordinary course Administrative Agent shall be entitled, without the consent of business)the Required Lenders, or enter into any partnershipsto release its Liens relating to the particular assets sold; or
(b) (i) purchase, joint ventures or sale-leaseback transactions, or purchase lease or otherwise acquire (in one a single transaction or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, materials leases, materials, property and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
as otherwise limited or prohibited herein) or (aii) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course any transaction of business with respect to real merger or personal property;
consolidation, except for (bA) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans or acquisitions permitted pursuant to Section 9.05;
6.5, (dB) Holdings and its Subsidiaries may sell the merger or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of Credit Party with and into another Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is will be the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j)entity, and (iiC) Holdings or the Borrower shall have given the Agents merger of Universal Manufacturing & Logistics GmbH with and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;into Blitz 05-106 GmbH.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower will not, and nor will not Holdings permit any of their respective its Subsidiaries to, wind up, liquidate or dissolve its 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 time) all or any part of its property or assets (other than inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 materials, general intangibles, equipment, goods and equipment services in the ordinary course of business) of any PersonPerson or agree to do any of the foregoing at any future time, except that the following shall be permitted:
(a) Holdings the US Borrower and its Subsidiaries may, as lessee or lessorlessee, enter into operating leases in the ordinary course of business with respect to real real, personal, movable or personal immovable property;
(b) Capital Expenditures by Holdings the US Borrower and its Subsidiaries to the extent not in violation of Section 9.077.11;
(c) the advances, investments and loans Investments permitted pursuant to Section 9.05;
(d) Holdings 7.05 and its Subsidiaries may sell the disposition or discount, in each case without recourse, accounts receivable arising liquidation of Cash Equivalents in the ordinary course of business, but only in connection with the compromise or collection thereof;
(ed) Holdings the US Borrower and any of its Subsidiaries may sell or exchange specific items otherwise dispose of machinery assets (excluding capital stock of, or equipmentother equity interests in, so long as Subsidiaries, Joint Ventures and Unrestricted Subsidiaries) that, in the proceeds of each such sale or exchange is used to acquire (and results within 180 days reasonable opinion of such sale Person, are obsolete, uneconomic or exchange no longer useful in the acquisition of) replacement items conduct of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries maysuch Person’s business, in each case in the ordinary course of business;
(e) any Subsidiary of the US Borrower may convey, lease, license, as licensor sell or licenseeotherwise transfer all or any part of its business, patents, trademarks, copyrights properties and knowassets to the US Borrower or to any Subsidiary Guarantor that is a Wholly-how to third Persons and to one anotherOwned Domestic Subsidiary, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors Parties pursuant to the applicable Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer)) and all actions required to maintain said perfected status have been taken;
(hf) any Wholly Owned Foreign Subsidiary of the US Borrower may convey, lease, license, sell or otherwise transfer all or any part of its business, properties and assets to a Wholly-Owned Foreign Subsidiary of the US Borrower, so long as (i) any security interests granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the applicable Security Documents in the assets so transferred shall remain in full force and perfected (to at least the same extent as in effect immediately prior to such transfer) and all actions required to maintain said perfected status have been taken and (ii) the aggregate fair market value (as determined in good faith by Holdings) of all such assets so transferred to Wholly-Owned Foreign Subsidiaries that are not Foreign Credit Parties shall not exceed $7,500,000;
(g) any Subsidiary of the US Borrower may merge with and into, or be dissolved or liquidated into, the US Borrower or any Subsidiary Guarantor that is a Wholly-Owned Domestic Subsidiary, so long as (i) the US Borrower or such Subsidiary Guarantor is the surviving corporation of any such merger, dissolution or liquidation and (ii) the any security interests granted to the Collateral Agent for the benefit of the Secured Creditors Parties pursuant to the applicable Security Documents in the assets and capital stock of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation)) and all actions required to maintain said perfected status have been taken;
(ih) any Wholly Owned Foreign Subsidiary of the US Borrower may merge with and into, or be dissolved or liquidated into, the Canadian Borrower, the UK Borrower or any Wholly other Wholly-Owned Foreign Subsidiary of the US Borrower (provided that the Canadian Borrower shall not merge with and into, or be dissolved or liquidated into, the UK Borrower and the UK Borrower shall not merge with and into, or be dissolved or liquidated into, the Canadian Borrower), so long as (ii)(A) in the case of any such Wholly merger, dissolution or liquidation involving the Canadian Borrower, the Canadian Borrower is the surviving corporation thereof and (B) in the case of any such merger, dissolution or liquidation involving the UK Borrower, the UK Borrower is the surviving corporation thereof, (ii) in the case of any such merger, dissolution or liquidation involving a Foreign Credit Party, such Foreign Credit Party is the surviving corporation thereof, (iii) in all other cases, such Wholly-Owned Foreign Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (iiiv) the any security interests granted to the Collateral Agent for the benefit of the Secured Creditors Parties pursuant to the applicable Security Documents in the assets and capital stock of such Wholly Owned Foreign Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation)) and all actions required to maintain said perfected status have been taken;
(i) the US Borrower and its Wholly-Owned Subsidiaries shall be permitted to make Permitted Acquisitions, so long as such Permitted Acquisitions are effected in accordance with the requirements of Section 6.13;
(j) the US Borrower and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons or one another, so long as any such license by the US Borrower or any such Subsidiary in its capacity as licensor is permitted to be assigned pursuant to the relevant Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the US Borrower or any such Subsidiary pursuant to such Security Agreement in the intellectual property covered by such license;
(k) the US Borrower and its Domestic Subsidiaries may transfer assets (other than cash) to Wholly-Owned Foreign Subsidiaries, so long as (i) no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), respective transfer and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice aggregate fair market value of any Permitted Acquisition all such assets so transferred (each determined in good faith by senior management of Holdings) to all such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Wholly-Owned Foreign Subsidiaries to third Persons does not interfering in any material respect with the business of Holdings or any of its Subsidiariesexceed $15,000,000;
Appears in 1 contract
Samples: Credit Agreement (Compass Minerals International Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, and nor will not they permit any of their respective Subsidiaries Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidationaffairs, or conveysell, selltransfer, 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 (each a “Disposition”) or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:
(A) the sale, transfer, lease or other than disposition of inventory and materials in the ordinary course of business and (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(ii) the sale, transfer or other disposition of property or assets to an unrelated party not in the ordinary course of business where and to the extent that they are the result of a Recovery Event;
(iii) the sale, lease, transfer or other disposition of (A) machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their Subsidiaries and (B) obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(iv) the sale, including lease or transfer of property or assets from one Credit Party to another Credit Party or dissolution of any Credit Party to the extent any and all assets are distributed to another Credit Party;
(v) the termination of any Hedging Agreement;
(vi) Dispositions of equipment or real property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property within twelve (12) months of such Disposition or (B) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property within 12 months of such Disposition;
(vii) the licensing of Intellectual Property in the ordinary course of business consistent with past practice;
(viii) Dispositions by the Borrower or any Subsidiary; provided that at any time after the Collateral Event, (i) with respect to asset sales for more than $300,000,000 per disposition or series of inventory related dispositions, at least 75% of the consideration for any such asset sale shall consist of cash or cash equivalents (provided that for purposes of the 75% cash consideration requirement (x) the amount of any Indebtedness or other liabilities of the Borrower or any Subsidiary (as shown on consignment such person’s most recent balance sheet or in the notes thereto) that are assumed by the transferee of any such assets, (y) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such asset sale, and (z) any securities received by the Borrower or such Subsidiary from such transferee that are converted by the Borrower or such Subsidiary into cash or cash equivalents (to the extent of the cash or cash equivalents received) within 270 days following the closing of the applicable asset sale, shall each be deemed to be cash or cash equivalents) and (ii) immediately prior to the consummation of such asset sale, no Event of Default shall have occurred and be continuing and no Event of Default shall result therefrom;
(ix) the sale, lease or transfer of property or assets as part of a Sale and Leaseback Transaction;
(x) the merger of a Credit Party or a Subsidiary thereof with another Credit Party or a Subsidiary thereof to the extent permitted by Section 6.4(b)(ii) below;
(xi) Dispositions of Equity Interests in Permitted JVs pursuant to the terms of the joint venture or equivalent agreements governing such Permitted JVs so long as such joint venture or equivalent agreements are not solely between Persons that are Credit Parties, Subsidiaries or Affiliates of Credit Parties;
(xii) terminations of leases by a Credit Party or a Subsidiary in the ordinary course of business that do not interfere in any material respect with the business of the Credit Parties or their Subsidiaries; and
(xiii) any sale, transfer, assignment, disposition, abandonment or lapse of Intellectual Property that is no longer commercially practicable, usable or desirable in the conduct of business, in the ordinary course of business; provided that (A) after giving effect to any Disposition pursuant to clauses (viii) and (xi) above, the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.9 hereof, recalculated for the most recently ended month for which information is available, and (B) with respect to clauses (v), (vi), (viii) and (xi) above, no Default or enter into any partnershipsEvent of Default shall exist or shall result therefrom; or
(b) (i) purchase, joint ventures or sale-leaseback transactions, or purchase lease or otherwise acquire (in one a single transaction or a series of related transactions) any part of the property or assets (of any Person, other than (A) Permitted Investments and (B) except as otherwise limited or prohibited herein, purchases or other acquisitions of inventory, materials materials, property and equipment in the ordinary course of business, or (ii) consummate any transaction of any Personmerger or consolidation, except that the following shall be permitted:
for (aA) Holdings and its Subsidiaries may, as lessee Investments or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans acquisitions permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, 6.5 so long as the proceeds of each Credit Party subject to such sale merger or exchange consolidation is used to acquire the surviving entity, (and results within 180 days of such sale B) (y) the merger or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings Subsidiary that is not a Credit Party with and into a Credit Party; provided that such Credit Party will be the surviving entity and (z) the merger or any consolidation of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of a Credit Party with and into another Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is will be the surviving corporation of any such merger, dissolution or liquidation and (iiC) the security interests granted to the Collateral Agent for the benefit merger or consolidation of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned a Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge that is not a Credit Party with and into, or be dissolved or liquidated into, any Wholly Owned into another Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary that is not a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Credit Party.
Appears in 1 contract
Samples: Credit Agreement (Mednax, Inc.)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and None of the Borrower will not, and will not permit any of their respective Subsidiaries to, wind upCredit Parties will:
(a) dissolve, liquidate or dissolve wind up its affairs affairs, or enter into any transaction of merger or consolidation; provided, or conveyhowever, sellthat, 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists would be directly or would indirectly caused as a result therefrom thereof, (including i) Speedway Motorsports may merge or consolidate with any of its Subsidiaries provided Speedway Motorsports is the surviving corporation or (ii) any Credit Party (other than Speedway Motorsports) may merge or consolidate with any other Credit Party (other than the Borrowers);
(b) sell, lease, transfer or otherwise dispose of any Property other than (i) the sale of inventory in the ordinary course of business for fair consideration, (ii) the sale or disposition of machinery and equipment no longer used or useful in the conduct of such Person's business, (iii) subject to the terms of Section 8.9 and 8.13, other sales and dispositions provided that (A) after giving pro forma effect to such acquisition sale or other disposition, the aggregate book value of assets sold or otherwise disposed of pursuant to this clause (iii) since the Closing Date does not exceed $5,000,000 and --- ----- (B) after giving effect on a Pro Forma Basis to such sale or other disposition, no Default or Event of Default would exist hereunder; or
(c) except as otherwise permitted by Section 8.4(a) or 8.5, acquire all or any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as portion of the first day capital stock or securities of any other Person or purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) all or any substantial part of the most recently completed Test Period (including Property of any other Permitted Acquisition that occurredPerson provided, and related Indebtedness that was incurredhowever, during that, so long as no Default or subsequent to such Test Period))Event of Default would be caused as a result thereof on a Pro Forma Basis, Holdings or then any of its Wholly Owned Subsidiaries Credit Party may consummate a Permitted Acquisition; provided that (i) Holdings acquire an interest in additional motor speedways, whether by merger, stock purchase or asset purchase; provided, however, that the aggregate Cash Consideration paid for such acquisitions in any fiscal year shall have -------- delivered to not exceed 25% of the Administrative Agent, Consolidated Net Worth of Speedway Motorsports at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j)immediately preceding fiscal year end, and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect consummate other acquisitions consistent with the business nature of Holdings the Borrowers' business, whether by merger, stock purchase or any of its Subsidiaries;asset purchase; provided, however, that the Cash Consideration paid for such other acquisitions shall not exceed $10,000,000 in the aggregate.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the The Borrower will not, and nor will not it permit any of their respective its Subsidiaries to:
(a) except in connection with a disposition of assets permitted by the terms of subsection (c) below, wind updissolve, liquidate or dissolve its affairs or wind up their affairs;
(b) enter into any transaction of merger or consolidation; provided, or conveyhowever, sellthat, 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists would be directly or would indirectly caused as a result therefrom thereof, any Credit Party (including other than the Borrower) may merge or consolidate with any other Credit Party (other than the Borrower) and (ii) so long as the Borrower is the continuing or surviving corporation, Thomxx Xxxffing Services, Inc. may merge or consolidate with the Borrower;
(c) sell, lease, transfer or otherwise dispose of any Property of the Borrower and its Subsidiaries other than (i) the sale or disposition of machinery and equipment no longer used or useful in the conduct of such Person's business, (ii) other sales of assets (but not accounts receivable, except delinquent accounts sold for collection purposes only), provided that, after giving pro forma effect to such acquisition and --- ----- sale or other disposition, the aggregate book value of assets sold or otherwise disposed of pursuant to this clause (ii) does not exceed $500,000 in any additional Indebtedness resulting therefrom fiscal year, (iii) the grant of any option or incurred other right to purchase any asset in a transaction that would be permitted under the provisions of the foregoing clause (ii), provided that no Default or assumed in connection therewith as if such acquisition had Event of Default has occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, is continuing at the time of delivery such grant and (iv) the sale or disposition of the Permitted Acquisition Notice, a certificate stock or assets of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or PFI Corp. and/or any of its wholly-owned Subsidiaries to third Persons not interfering existing as of the Closing Date;
(d) acquire all or any portion of the capital stock or securities of any other Person or purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) all or any substantial part of the Property of any other Person, except for Permitted Acquisitions; or
(e) become a general partner in any material respect with the business of Holdings general or any of its Subsidiaries;limited partnership, joint venture or similar arrangement.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower Xxxx will not, and nor will not it permit any of their respective its Subsidiaries to, wind up:
(a) dissolve, liquidate or dissolve its affairs wind up their affairs, or enter into any transaction of merger or consolidation; provided, or conveyhowever, sellthat, 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists would be directly or would indirectly caused as a result therefrom thereof, (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom i) Xxxx may merge or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or consolidate with any of its Wholly Subsidiaries provided that Xxxx is the surviving corporation; (ii) any Domestic Subsidiary of Xxxx may merge or consolidate with any other Domestic Subsidiary of Xxxx; (iii) any Domestic Subsidiary of Xxxx may merge or consolidate with any Foreign Subsidiary of Xxxx provided that such Domestic Subsidiary is the surviving corporation; (iv) any Foreign Subsidiary of Xxxx may merge or consolidate with any other Foreign Subsidiary of Xxxx; and (v) any Wholly-Owned Subsidiaries Subsidiary of Xxxx may consummate dissolve, liquidate or wind up its affairs at any time;
(b) sell, lease, transfer or otherwise dispose of any Property (including without limitation pursuant to any sale and leaseback transaction) other than (i) the sale of inventory in the ordinary course of business for fair consideration, (ii) the sale or disposition of machinery and equipment no longer used or useful in the conduct of such Person's business, (iii) in a Permitted Acquisition; Receivables Financing and (iv) other sales of assets, provided that (iA) Holdings after giving effect on a Pro Forma Basis to such sale or other disposition, no Default or Event of Default would exist under the Credit Agreement and (B) Xxxx shall have -------- delivered give notice to the Administrative Agent, at the time of delivery Agent and each of the Permitted Acquisition NoticeLenders specifying the anticipated or actual date of such asset sale, briefly describing the assets sold or to be sold and setting forth the net book value of such assets and the aggregate consideration and Net Proceeds to be received for such assets in connection with such asset sale, and thereafter Xxxx shall (1) within the period of twelve months following the consummation of such asset sale (with respect to any such asset sale, the "Application Period"), apply (or cause an applicable Subsidiary to apply) an amount equal to the Excess Sale Proceeds of such asset sale to the purchase, acquisition or, in the case of real property, construction of Alternative Assets in a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) transaction complying with all of the provisions terms and conditions of this paragraph the Credit Agreement or (j2) prepay the Loans in connection with such asset sale to the extent required by Section 3.3(b)(iii); or
(c) acquire all or any portion of the capital stock or securities of any other Person or purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) all or any substantial part of the Property of any other Person unless (i) such Property or Person represents operations similar to those Xxxx and its Subsidiaries, (ii) no Default or Event of Default exists, and (iiiii) Holdings after giving effect to such transaction, no Default or the Borrower shall have given the Agents and the Banks at least 30 days prior notice Event of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Default would exist.
Appears in 1 contract
Samples: Credit Agreement (Hunt Corp)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and No member of the Borrower will not, and will not permit any of their respective Subsidiaries to, wind up, liquidate or dissolve its affairs or enter Consolidated Group shall:
(a) Enter into any a transaction of merger or consolidation, EXCEPT (i) a member of the Consolidated Group (other than the Parent) may be a party to a transaction of merger or conveyconsolidation with another member of the Consolidated Group (other than the Parent) and (ii) any acquisition permitted pursuant to clause (c) immediately below may be effected by a merger with and into a Credit Party (other than the Parent) or Subsidiary of a Credit Party so long as, sellin either case, lease (A) if the Borrower is a party thereto, the Borrower shall be the surviving corporation, (B) if a Subsidiary Guarantor is a party thereto and the Borrower is not a party thereto, the Subsidiary Guarantor shall be the surviving corporation, and (C) no Incipient Default or Event of Default shall exist either immediately prior to or immediately after giving effect thereto;
(b) Sell, lease, transfer or otherwise dispose of assets, property and/or operations (or agree to do including any sale-leaseback transaction, but excluding (x) the sale of the foregoing at any future time) all or any part of its property or assets (other than inventory in the ordinary course of businessbusiness and (y) the sale or disposition of plant, including sales of inventory on consignment property and equipment which is no longer useful in the ordinary course business or as to which the proceeds therefrom are reinvested in plant, property and equipment within six months thereof, unless
(i) the book value of business)such assets, property and/or operations do not in the aggregate exceed $5,000,000 in any fiscal year, and
(ii) no Incipient Default or enter into any partnershipsEvent of Default exists or would exist after giving effect thereto on a Pro Forma Basis, joint ventures or sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part without the prior written consent of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07Majority Banks;
(c) Acquire all or any portion of the advancescapital stock or other ownership interest in any Person or all or any substantial portion of the assets, investments and loans permitted pursuant to Section 9.05;
property and/or operations of any Person (d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in acquisition, an "ACQUISITION"), without the acquisition of) replacement items of machinery or equipment which are the functional equivalent prior written consent of the item of equipment so sold or exchanged;Majority Banks, UNLESS
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and total cash consideration (including Indebtedness assumed) for all Acquisitions shall not exceed $20,000,000 in the aggregate in any fiscal year; and
(ii) the security interests granted total consideration (cash and non-cash, including, without limitation, Indebtedness assumed, the amount of contingent obligations (including, without limitation, obligations to make earn-out payments) incurred, and the Collateral Agent for the benefit fair value of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary capital stock of the Borrower may merge with issued) for any single Acquisition (or series of related Acquisitions) shall not exceed $50,000,000; and
(iii) the total consideration (cash and intonon-cash, or be dissolved or liquidated intoincluding, without limitation, Indebtedness assumed, the Borrower so long as amount of contingent obligations (iincluding, without limitation, obligations to make earn-out payments) incurred, and the Borrower is the surviving corporation fair value of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary capital stock of the Borrower may merge with and into, issued to the seller) for all Acquisitions shall not exceed $100,000,000 in the aggregate in any fiscal year; and
(iv) the Board of Directors (or be dissolved or liquidated into, any Wholly Owned Subsidiary its equivalent) of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and Person which is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit subject of the Secured Creditors pursuant to acquisition shall have approved the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);acquisition; and
(jv) so long as no Incipient Default or Event of Default then exists or would result therefrom exist after giving effect thereto on a Pro Forma Basis; or
(including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as d) In the case of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurredParent, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition Material Subsidiary which is not wholly-owned, liquidate, wind-up or dissolve, whether voluntarily or involuntarily (each or suffer to permit any such notice a "Permitted Acquisition Notice"liquidation or dissolution); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings Holding and the Borrower will not, and will not permit any of their respective the Borrower’s Subsidiaries to, wind up, liquidate or dissolve its affairs affairs, or enter into any transaction of merger or consolidation, sell or conveyotherwise dispose of all or any part of its property or assets (other than (x) Inventory, sellobsolete equipment, excess equipment no longer needed in the conduct of business or equipment being replaced with other equipment, in each case in the ordinary course of business and (y) in the case of Holding, the disposition of the capital stock of the Borrower in accordance with the Holding Note Pledge Agreement as in effect on the Restatement Effective Date) or purchase, lease or otherwise dispose acquire (in one transaction or a series of related transactions) all or any part of the property or assets of any Person (other than (i) to replace obsolete property or assets disposed of in compliance with this Section and (ii) purchases, leases or other acquisitions of goods, inventory and equipment, operating leases of property, in each case, in the ordinary course of business) or agree to do any of the foregoing at any future time) all or any part of its property or assets (other than inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall also be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases Capital Expenditures to the extent within the limitations set forth in the ordinary course of business with respect to real or personal propertySection 8.4;
(b) Capital Expenditures by Holdings the investments, acquisitions and its Subsidiaries transfers or dispositions of properties permitted pursuant to the extent not in violation of Section 9.078.5;
(c) any Subsidiary (other than Insurance Sub) of the advancesBorrower may be merged or consolidated with or into, investments or be liquidated into, the Borrower or any other Subsidiary (other than Insurance Sub) of the Borrower (so long as the Borrower or any other Subsidiary (other than Insurance Sub) of the Borrower is the surviving corporation), or all or any part of the business, properties and loans permitted pursuant assets of any Subsidiary (other than Insurance Sub) may be conveyed, leased, sold or transferred to Section 9.05the Borrower or any other Subsidiary (other than Insurance Sub) of the Borrower;
(d) Holdings the Borrower and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course otherwise dispose of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if assets the transferee is a Subsidiary, such Subsidiary is a Guarantor net cash proceeds of which in the aggregate do not exceed $10,000,000 from the Restatement Effective Date to the Expiration Date (excluding the assets described in clause (ii) hereof) and (ii) the security interests granted properties listed on Schedule XIII; and
(e) Holding, the Borrower and EMJ Metals may effect the Merger substantially concurrently with the IPO and the consummation of the exchange pursuant to the Exchange Agreement; provided that all cash payments for debt or equity securities of Holding may be made solely with the proceeds of the IPO and the Dissenters’ Rights Condition shall have been met. To the extent the Required Lenders waive the provisions of this Section 8.1 with respect to the sale of any Collateral, or any Collateral Agent for is sold as permitted by this Section 8.1, such Collateral in each case shall be sold free and clear of the benefit Liens in favor of the Secured Creditors pursuant to created by the Security Collateral Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of shall take such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent actions as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed it deems appropriate in connection therewith or as if it may be reasonably requested by the Borrower to evidence such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurredLien release, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, in each case at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Borrower’s expense.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings Holding ------------------------------------------------------- and the Borrower will not, and will not permit any of their respective the Borrower's Subsidiaries to, wind up, liquidate or dissolve its affairs affairs, or enter into any transaction of merger or consolidation, sell or conveyotherwise dispose of all or any part of its property or assets (other than (x) inventory, sellobsolete equipment, excess equipment no longer needed in the conduct of business or equipment being replaced with other equipment, in each case in the ordinary course of business and (y) in the case of Holding, the disposition of the capital stock of the Borrower in accordance with the Holding Note Pledge Agreement as in effect on the Restatement Effective Date) or purchase, lease or otherwise dispose acquire (in one transaction or a series of related transactions) all or any part of the property or assets of any Person (other than (i) to replace obsolete property or assets disposed of in compliance with this Section and (ii) purchases, leases or other acquisitions of goods, inventory and equipment, operating leases of property, in each case, in the ordinary course of business) or agree to do any of the foregoing at any future time) all or any part of its property or assets (other than inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall also be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases Capital Expenditures to the extent within the limitations set forth in the ordinary course of business with respect to real or personal propertySection 8.4;
(b) Capital Expenditures by Holdings the investments, acquisitions and its Subsidiaries transfers or dispositions of properties permitted pursuant to the extent not in violation of Section 9.078.5;
(c) any Subsidiary (other than Insurance Sub) of the advancesBorrower may be merged or consolidated with or into, investments or be liquidated into, the Borrower or any other Subsidiary (other than Insurance Sub) of the Borrower (so long as the Borrower or any other Subsidiary (other than Insurance Sub) of the Borrower is the surviving corporation), or all or any part of the business, properties and loans permitted pursuant assets of any Subsidiary (other than Insurance Sub) may be conveyed, leased, sold or transferred to Section 9.05the Borrower or any other Subsidiary (other than Insurance Sub) of the Borrower;
(d) Holdings the Borrower and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course otherwise dispose of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if assets the transferee is a Subsidiary, such Subsidiary is a Guarantor net cash proceeds of which in the aggregate do not exceed $10,000,000 (excluding the assets described in clause (ii) hereof) and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);properties listed on Schedule XIII; and
(he) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) purchase the Borrower is the surviving corporation of any such mergerreal property and plant located at 000 Xxxxx Xxxxxxx, dissolution or liquidation Xxxxxxxxxx, Xxxx for no more than $6,000,000 and (ii) enter into a sale leaseback agreement with a third party for such real property and plant on terms no less favorable than the security interests granted to the Collateral Agent for the benefit terms of the Secured Creditors pursuant to existing lease agreement for such real property and plant. To the Security Documents in extent the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of Required Lenders waive the provisions of this paragraph (j)Section 8.1 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 8.1, such Collateral in each case shall be sold free and (ii) Holdings clear of the Liens in favor of the Lenders created by the Collateral Documents and the Collateral Agent shall take such actions as it deems appropriate in connection therewith or may be reasonably requested by the Borrower shall have given to evidence such Lien release, in each case at the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Borrower's expense.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, nor will they permit any Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, or sell, transfer, lease or otherwise dispose of its property or assets or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:
(i) (A) the sale, transfer, lease or other disposition of property, plant, equipment or other assets for fair market value, in the ordinary course of business (other than any Collateral and will not permit the Acquired Properties) so long as the proceeds thereof are used to reduce the Term Loan in accordance with Section 2.7(b) and (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(ii) Extraordinary Receipts for which such Credit Party or such Subsidiary has received any cash insurance proceeds or condemnation or expropriation award with respect to such property or assets to the extent Net Cash Proceeds from such Extraordinary Receipt related to any Collateral are used to make mandatory prepayments pursuant to Section 2.7(b)(iv);
(iii) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their respective Subsidiaries toSubsidiaries;
(iv) the sale, wind uplease or transfer of property or assets from one Credit Party to another Credit Party or from one Subsidiary that is not a Credit Party to another Subsidiary;
(v) the termination of any Hedging Agreement other than a Hedging Agreement required pursuant to Section 5.13; and
(vi) in addition to subsection (iv) above, liquidate the sale, lease or dissolve transfer of property or assets from any Subsidiary to any other Subsidiary for the purpose of entering into a collateralized debt obligation financing that is otherwise permitted pursuant to this Agreement, provided that net proceeds from such financing shall be used to first repay the applicable obligations pursuant to the Wachovia Repurchase Facility and then to repay the Term Loan in accordance with Section 2.7(b); provided that (A) with respect to clauses (i)(A), (ii), (iii) and (vi) above, at least 75% of the consideration received therefor by the Credit Parties or any such Subsidiary shall be in the form of cash or Cash Equivalents and (B) with respect to clauses (i), (iv), (v) and (vi) above, no Default or Event of Default shall exist or shall result therefrom; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall be entitled, without the consent of any Lender, to release its affairs Liens relating to the particular assets sold; or
(b) (i) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person, other than, except as otherwise limited or prohibited herein, purchases or other acquisitions of real estate and real estate related assets (including derivatives thereof) in the ordinary course of business and consistent with the Parent’s past practices, or (ii) enter into any transaction of merger or consolidation, except for (A) Investments 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, 6.5 so long as the proceeds of each Credit Party subject to such sale merger or exchange consolidation is used to acquire the surviving entity, (and results within 180 days of such sale B) (y) the merger or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings Subsidiary that is not a Credit Party with and into a Credit Party; provided that such Credit Party will be the surviving entity and (z) the merger or any consolidation of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of a Credit Party with and into another Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is will be the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j)corporation, and (iiC) Holdings the merger or the Borrower shall have given the Agents consolidation of a Subsidiary that is not a Credit Party with and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice into another Subsidiary that is not a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Credit Party.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and Each of the Borrower Borrowers will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, wind up:
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease to a third party 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 or agree to do so at a future time except the following, without duplication, shall be expressly permitted:
(i) Specified Sales;
(ii) the disposition of property or assets as a result of a Recovery Event;
(iii) the sale, lease, transfer or other than inventory disposition of property and assets no longer used or useful in the conduct of the business of the Borrower or any of its Subsidiaries (including the disposition of superfluous, obsolete or uneconomic property and/or assets acquired in connection with any Permitted Acquisition, subject to the provisions of Section 2.7(b)(ii));
(iv) the sale, lease or transfer of property or assets between Borrowers, so long as the Liens of the Administrative Agent for the ratable benefit of the Lenders with respect to such property or assets remain in full force and effect and fully perfected after giving effect to such transaction and the attachment and priority of such Liens remains unchanged;
(v) the sale, lease or transfer of property or assets not to exceed $1,000,000 in the aggregate in any fiscal year and $2,000,000 in the aggregate during the term of this Agreement; and
(vi) the sale, grant or transfer of licenses and sublicenses in the ordinary course of business; provided, including sales that in each case (other than with respect to clause (iv) above) (A) at least 50% of inventory on consignment the consideration received therefor by any Borrower or any such Subsidiary shall be in the ordinary course form of business)cash or Cash Equivalents, (B) after giving effect to the sale, lease, transfer or enter into other disposition of such property or assets and the repayment of Indebtedness (if any) with the proceeds thereof, the Borrowers shall be in compliance on a pro forma basis with the financial covenants set forth in Section 5.9 hereof and shall be in compliance with all other terms and conditions of this Agreement, and (C) no Event of Default shall exist or shall result from such sale, lease, transfer or other disposition of property or assets; provided, further, that with respect to any partnershipssale or transfer of property or assets permitted hereunder to an unrelated third party, joint ventures the Administrative Agent shall be entitled, without the consent of the Lenders or sale-leaseback transactionsthe Required Lenders, to release its Liens relating to the particular property or purchase assets sold; or
(b) (i) purchase, lease or otherwise acquire (in one a single transaction or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, materials materials, property, equipment and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising intellectual property in the ordinary course of business, but only in connection with the compromise except as otherwise limited or collection thereof;
(eprohibited herein) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent enter into any transaction of merger or consolidation, except for the benefit of the Secured Creditors (A) investments or acquisitions (including Permitted Acquisitions) permitted pursuant to Section 6.5, (B) the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary merger or consolidation of the a Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisitioninto another Borrower; provided that (i) Holdings shall have -------- delivered to if the Administrative AgentParent Borrower is a party thereto, at the time of delivery of Parent Borrower will be the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j)surviving corporation, and (iiC) Holdings or the Borrower shall have given the Agents MATCOM Acquisition and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;transactions related thereto.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Company will not, and will not permit any of their respective its Restricted Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger merge or consolidationconsolidate, 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 inventory in the ordinary course of businesssales, including sales leases or rentals of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or sale-leaseback transactionstransactions (such conveyance, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases sale, lease, sale-leaseback or other acquisitions of inventorydisposition, materials and equipment in the ordinary course of business) of any Persona “Disposition”), except that the following shall be permitted:
(a) Holdings the Company and its Restricted Subsidiaries may, as lessee or lessorlicensee, enter into operating leases leases, subleases, licenses or sub-licenses in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings the Company and its Subsidiaries to the extent not in violation of Section 9.07Restricted Subsidiaries;
(c) to the advancesextent constituting Dispositions, investments and loans Investments permitted pursuant to Section 9.057.05 and Liens permitted pursuant to Section 7.03;
(d) Holdings the Company and its Restricted Subsidiaries may Dispose of (x) inventory in the ordinary course of business or (y) assets (whether tangible or intangible) which, in the reasonable opinion of such Person, are obsolete, uneconomic, no longer used or useful, worn-out or constitute surplus assets;
(e) any Disposition (other than with respect to the Equity Interests of any Borrower or Guarantor, unless all of the Equity Interests of such Guarantor are so sold), so long as (i) no Event of Default then exists or would result therefrom, (ii) the Company or the respective Restricted Subsidiary receives at least fair market value (as determined in good faith by the Company or such Restricted Subsidiary, as the case may be), (iii) the total consideration in excess of $5,000,000 received by the Company or such Restricted Subsidiary is at least 75% cash and is paid at the time of the closing of such sale and (iv) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.05(b)(ii); provided that for purposes of the 75% cash consideration requirement (A) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated to the Obligations or that are owed to the Company or a Restricted Subsidiary) of the Company or any applicable Restricted Subsidiary (as shown on such Person’s most recent balance sheet or in the notes thereto) that are (x) assumed by the transferee of any such assets or (y) otherwise cancelled or terminated in connection with the transaction with such transferee and, in each case, for which the Company and its Restricted Subsidiaries (to the extent previously liable thereunder) shall have been validly released by all relevant creditors in writing, (B) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such asset sale, (C) any securities, notes or other obligations or assets received by the Company or any Restricted Subsidiary from such transferee that are converted by such Person into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within one hundred eighty (180) days following the closing of the applicable asset sale, (D) Indebtedness of any Restricted Subsidiary that ceases to be a Restricted Subsidiary as a result of such asset sale (other than intercompany debt owed to a Borrower or its Restricted Subsidiaries), to the extent that the Borrowers and all of the Restricted Subsidiaries (to the extent previously liable thereunder) are released from any guarantee of payment of the principal amount of such Indebtedness in connection with such asset sale and (E) any Designated Non-Cash Consideration received in respect of such asset sale having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (e) that is at that time outstanding, not in excess of $100,000,000 (determined at the time any such asset sale is made) shall be deemed to be cash, with the fair market value of each item of Designated Non-Cash Consideration being measured at the time received and without giving effect to subsequent changes in value;
(f) each of the Company and its Restricted Subsidiaries may sell or discount, in each case without recourserecourse 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 thereofthereof and not as part of any financing transaction;
(eg) Holdings each of the Company and its Restricted Subsidiaries may grant leases or subleases or licenses or sublicenses to other Persons not materially interfering with the conduct of the business of the Company or any of its Restricted Subsidiaries;
(h) Dispositions to the Company or any Restricted Subsidiary; provided that, any such Disposition made by (i) a Domestic Credit Party to a Foreign Borrower and (ii) a Foreign Borrower to a Non-Credit Party must be, in each case, permitted by Section 7.05;
(i) any Subsidiary may merge with a Borrower in a transaction in which such Borrower is the surviving Person, (ii) any Restricted Subsidiary may merge with any Subsidiary in a transaction in which the surviving entity is a Restricted Subsidiary (so long as, (x) if a Borrower is a party to such transaction, such Borrower shall be the surviving Person and (y) if a Credit Party is a party to such transaction, the Credit Party shall be the surviving Person), (iii) any Person may merge into a Borrower in an Investment permitted by Section 7.05 in which such Borrower is the surviving Person, (iv) any Person may merge with a Restricted Subsidiary in an Investment permitted by Section 7.05 in which the surviving entity is a Restricted Subsidiary so long as if any party to such merger is a Credit Party, the surviving entity is a Credit Party and (v) in connection with the Disposition of a Restricted Subsidiary (other than a Borrower) or its assets permitted by this Section 7.02, such Restricted Subsidiary may merge with or into any other Person;
(j) the Company and its Restricted Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds purpose of each such sale or exchange is used to acquire (and results within 180 90 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;
Appears in 1 contract
Samples: Credit Agreement (EnerSys)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower will not, and will not permit any of their respective 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 inventory in the ordinary course of businessbusiness through distribution arrangements, including sales of inventory on vendor financial service programs, consignment in the ordinary course of businessor otherwise), or enter into any partnerships, joint ventures or sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part all or substantially all of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of, or any line of business or division of, any Person, or any assets of another Person that constitute a business unit, except that the following shall be permitted:
(a) Holdings the Borrower and its Subsidiaries may, may lease as lessee or lessor, enter into operating leases lessor or license as licensee or licensor real or personal property in the ordinary course of business and otherwise in compliance with respect this Agreement, so long as any such lease or license by the Borrower or any of its Subsidiaries in its capacity as lessor or licensor, as the case may be, does not prohibit the granting of a Lien by the Borrower or any of its Subsidiaries to the extent required pursuant to the Mortgage in the real property covered by such lease or pursuant to the Security Agreement in the personal propertyproperty covered by such lease or license, as the case may be;
(b) Capital Expenditures by Holdings the Borrower and its Subsidiaries to the extent not in violation of Section 9.07Subsidiaries;
(c) the advances, investments and loans permitted pursuant to Section 9.058.05;
(d) Holdings the Borrower and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings the Borrower and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange equipment in the acquisition of) replacement items ordinary course of machinery or business other than equipment which are the functional equivalent of the item of equipment so sold or exchangedconstituting fixtures located on any Mortgaged Property;
(f) Holdings the Borrower and its Subsidiaries may, in the ordinary course of business, license, license as licensee or licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons and to one another, another so long as as, with respect to any Credit Party, any such license by Holdings or its Subsidiaries such Credit Party in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries such Credit Party pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Foreign Subsidiary may be merged with and into, or be dissolved or liquidated into, or transfer any of its assets to, any Wholly-Owned Foreign Subsidiary so long as (i) such Wholly-Owned Foreign Subsidiary is the surviving Person of any such merger, dissolution or liquidation and (ii) in each case all of the non-voting capital stock and at least 65% of the total combined voting power of all classes of voting capital stock of all first-tier Foreign Subsidiaries are pledged pursuant to the Security Agreement;
(h) the assets of any Foreign Subsidiary may be transferred to the Borrower or any of its Wholly-Owned Domestic Subsidiaries, and any Foreign Subsidiary may be merged with and into, or be dissolved or liquidated into, the Borrower or any of its Wholly-Owned Domestic Subsidiaries so long as the Borrower or such Wholly-Owned Domestic Subsidiary is the surviving Person of any such merger, dissolution or liquidation;
(i) the Borrower or any of its Wholly-Owned Domestic Subsidiaries may transfer to one or more Wholly-Owned Foreign Subsidiaries those assets theretofore transferred to the Borrower or such Wholly-Owned Domestic Subsidiary by a Foreign Subsidiary (whether by merger, liquidation, dissolution or otherwise) pursuant to clause (h) of this Section 8.02;
(j) the Borrower and its Subsidiaries may sell or otherwise transfer inventory to their respective Subsidiaries for resale by such Subsidiaries, and Subsidiaries of the Borrower may sell or otherwise transfer inventory to the Borrower for resale by the Borrower so long as the Lien granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Agreement in the inventory so transferred (or the proceeds thereof, in the case of a transfer to a Foreign Subsidiary) shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(k) Holdings and the Borrower may contribute cash in the ordinary course of business to one or more Wholly-Owned Subsidiaries of the Borrower which are Domestic Subsidiaries formed in accordance with Section 8.12;
(l) so long as no Default or Event of Default exists and is continuing, the Borrower and its Domestic Subsidiaries may transfer assets (other than inventory) to Wholly-Owned Foreign Subsidiaries so long as the aggregate fair market value of all such assets so transferred (determined in good faith by the Board of Directors or senior management of the Borrower) to all such Foreign Subsidiaries, when added to (x) the aggregate outstanding principal amount of Intercompany Loans made to Foreign Subsidiaries under Section 8.05(g) and (y) the aggregate amount of contributions, capitalizations and forgiveness theretofore made pursuant to Section 8.05(l) since the Amendment Effective Date, does not exceed $25,000,000;
(m) so long as no Default or Event of Default exists and is continuing, assets of the Borrower and its Domestic Subsidiaries constituting non-U.S. operations may be transferred to Wholly-Owned Foreign Subsidiaries of the Borrower;
(n) so long as no Default or Event of Default exists or would result therefrom, each of the Borrower and its Subsidiaries may sell assets, other than accounts (as defined in the UCC), the Mortgaged Property, and Intellectual Property, at the fair market value (as determined in good faith by the Board of Directors or senior management of the Borrower);
(o) so long as no Default or Event of Default then exists or would result therefrom, any Acquisition Subsidiary, the Borrower and its Subsidiaries may acquire (y) assets or capital stock of any Person as permitted by Section 8.05 or (z) all or substantially all of the assets or capital stock of, or any line of business or division of, any Person, or the assets of another Person that constitute a business unit (any such acquisition permitted by this subclause (z), a “Permitted Acquisition”), provided, that (i) such Person (or the assets so acquired) was, immediately prior to such acquisition, engaged (or used) primarily in the businesses permitted pursuant to Section 8.01(a), (ii) if such acquisition is structured as a stock acquisition, the provisions of Section 8.12 have been complied with in respect of such Person if (A) the Person so acquired becomes a Wholly-Owned Subsidiary of the Borrower or a Controlled Subsidiary of the Borrower or (B) such Person is merged with and into the Borrower or a Wholly-Owned Subsidiary or a Controlled Subsidiary of the Borrower (with the Borrower, such Wholly-Owned Subsidiary or such Controlled Subsidiary being the surviving Person of such merger), (iii) any Liens or Indebtedness assumed or issued in connection with such acquisition are otherwise permitted under Section 8.03 or 8.04, as the case may be, (iv) the only consideration paid in connection with such Permitted Acquisition consists of cash (including cash constituting the proceeds of Revolving Loans hereunder), Holdings Common Stock (valued based on the then current trading price for such Holdings Common Stock), Permitted Subordinated Indebtedness, Permitted Holdings PIK Securities (valued at the aggregate liquidation preference thereof in the case of preferred stock and the aggregate face amount thereof in the case of indebtedness) and/or additional Indebtedness assumed or incurred pursuant to Section 8.04(j) or 8.04(s), (v) the aggregate amount of cash consideration paid and Indebtedness assumed or incurred pursuant to Section 8.04(j) and/or 8.04(s) (including any such consideration paid in respect of Investments previously made in such entity pursuant to Section 8.05) in connection with any such Permitted Acquisition (or series of related Permitted Acquisitions) occurring after the Amendment Effective Date shall not exceed $50,000,000 plus the then applicable Equity Proceeds Amount, (vi) in the case of any such Permitted Acquisition (or series of related Permitted Acquisitions) occurring after the Amendment Effective Date involving an aggregate amount of cash consideration paid and Indebtedness assumed or incurred pursuant to Sections 8.04(j), 8.04(q) or 8.04(s) in excess of $50,000,000 (plus, as of any date, the then applicable Equity Proceeds Amount as of such date), prior written consent of the Required Banks to the consummation thereof shall have been obtained and (vii) in the case of any Permitted Acquisition involving an expenditure (with the consideration valued as set forth in clause (iv) above) in excess of $20,000,000, the Borrower shall, on or prior to the date of closing of such Permitted Acquisition, provide to the Administrative Agent a certificate, which shall certify calculations showing, in reasonable detail, that on a pro forma basis, immediately after giving effect to such Permitted Acquisition, the Borrower would have been in compliance with Sections 8.08 and 8.09 of this Agreement for the most recently ended Test Period;
(p) any Domestic Subsidiary of the Borrower may transfer assets (other than inventory) to the Borrower or to any other Wholly Wholly-Owned Domestic Subsidiary of the Borrower, Borrower so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests Liens granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(hq) any Wholly Wholly-Owned Domestic Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation Person of any such merger, dissolution or liquidation and (ii) the security interests Liens granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Wholly-Owned Domestic Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger);
(r) any Domestic Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any other Wholly-Owned Domestic Subsidiary of the Borrower so long as (i) such Wholly-Owned Domestic Subsidiary of the Borrower is the surviving Person of such merger, dissolution or liquidation and (ii) the Liens granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Domestic Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(is) any Wholly Owned Subsidiary the Borrower and its Subsidiaries may, in the ordinary course of business, sell, transfer or otherwise dispose of assets (including Intellectual Property but specifically excluding Mortgaged Property) which, in the reasonable judgment of the Borrower may merge with and intoor such Subsidiary, are determined to be uneconomical, negligible or be dissolved or liquidated into, any Wholly Owned Subsidiary obsolete in the conduct of its business;
(t) the Borrower and its Subsidiaries may, in the ordinary course of business, engage in vehicle sale-leaseback transactions so long as the aggregate book value of all vehicles disposed of under such sale-leaseback transactions since the Amendment Effective Date does not exceed $2,000,000;
(u) the Borrower and its Subsidiaries may affect any sale of Real Property (other than the Mortgaged Property) at any time no Event of Default exists or would exist after giving effect to such sale;
(v) the Borrower and its Subsidiaries may affect any sale of the Designated Mortgaged Property if (i) no Event of Default exists or would exist after giving effect to such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such mergersale, dissolution or liquidation and (ii) the security interests granted to sale is for fair market value (as determined in good faith by the Collateral Agent for the benefit Board of Directors or senior management of the Secured Creditors pursuant to Borrower) and for 100% cash consideration, and (iii) the Security Documents in Borrower repays the assets outstanding principal amount of the Loans with the Net Proceeds of such Wholly Owned Subsidiary shall remain in full force and effect and perfected sale within three (to at least 3) Business Days of the same extent as in effect immediately prior to Borrower’s or its Subsidiary’s receipt of such merger, dissolution or liquidation);Net Proceeds; and
(jw) so long as the Borrower and its Subsidiaries may affect any sale of Intellectual Property not otherwise permitted to be disposed of under clause (s) hereof if (i) no Default or Event of Default then exists or would result therefrom (including exist after giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom sale, (ii) the sale is for fair market value (as determined in good faith by the Board of Directors or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as senior management of the first day Borrower) and for 100% cash consideration, and (iii) the Borrower repays the outstanding principal amount of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered Loans in an amount equal to the Administrative Agent, at the time Net Proceeds of delivery such sale within three (3) Business Days of the Permitted Acquisition Notice, a certificate Borrower’s or its Subsidiary’s receipt of such Net Proceeds. To the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of extent the Required Banks waive the provisions of this paragraph Section 8.02 with respect to the sale or other disposition of any Collateral, or any Collateral is sold or disposed of as permitted by this Section 8.02 (jother than any sale or disposition to a Credit Party), such Collateral in each case shall be sold or otherwise disposed of free and (ii) Holdings or clear of the Borrower shall have given Liens created by the Agents Security Documents and the Banks at least 30 days prior notice of any Permitted Acquisition Administrative Agent shall take such actions (each including directing the Collateral Agent to take such notice a "Permitted Acquisition Notice"); -----------------------------
(kactions) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering as are appropriate in any material respect with the business of Holdings or any of its Subsidiaries;connection therewith.
Appears in 1 contract
Samples: Credit Agreement (Nutraceutical International Corp)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and Each of the Borrower Credit Parties will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, wind up:
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease or otherwise dispose of (its property or assets or agree to do any so at a future time except the following, without duplication, shall be expressly permitted:
(i) Specified Sales;
(ii) the sale, transfer, lease or other disposition of the foregoing at any future time) all or any part of its property or assets (other than inventory A) to an unrelated party not in the ordinary course of businessbusiness (other than Specified Sales), including where and to the extent that they are the result of a Recovery Event or (B) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their Subsidiaries, as appropriate, in its reasonable discretion;
(iii) the sale, lease or transfer of property or assets from (x) any Credit Party that is a Domestic Guarantor or the Company to another Credit Party that is a Domestic Guarantor or the Company or (y) from Alliance AG or any of its Subsidiaries to the Dutch Borrower (so long as the Dutch Borrower does not pay more than fair value);
(iv) the sale, lease, transfer or other disposition of property or assets (at fair value) (w) from any Foreign Subsidiary which is not the Dutch Borrower, Alliance AG or a Pledged Foreign Subsidiary, to the Company or any of its Subsidiaries, (y) between Pledged Foreign Subsidiaries which are Subsidiaries of the Dutch Borrower or (z) from any Pledged Foreign Subsidiaries which are Subsidiaries of the Dutch Borrower (other than Alliance AG) to any Foreign Subsidiary which is a Subsidiary of the Dutch Borrower (other than Alliance AG or a Pledged Foreign Subsidiary) in an aggregate amount not to exceed $20,000,000 in any fiscal year;
(v) (A) the sale of accounts receivable in accordance with the terms of Section 6.1(g) and (B) the sale of accounts receivable arising from sales of inventory on consignment tobacco, which accounts receivable are sold pursuant to a factoring arrangement without recourse;
(vi) the sale, lease or transfer of obsolete, worn out, surplus, redundant or excess property or assets in the ordinary course of businessbusiness (other than machinery, parts and equipment disposed of in accordance with clause (ii) above), or enter into any partnershipsagreement to do so at a future time;
(vii) the dissolution, joint ventures liquidation or winding up of a Foreign Subsidiary or a Domestic Subsidiary other than a Borrower, Alliance AG, a Domestic Guarantor or a Pledged Foreign Subsidiary, if the Company determines in good faith that such a dissolution, liquidation or winding up is in the best interests of the Credit Parties and is not materially disadvantageous to the Lenders;
(viii) the sale-leaseback transactions, lease or transfer of additional property or assets, or purchase agreement to do so at a future time in an amount not to exceed $35,000,000 in the aggregate in any fiscal year; and
(ix) the sale of any property permitted to be sold pursuant to Section 6.12.
(b) purchase, lease or otherwise acquire (in one a single transaction or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, materials leases, materials, property and equipment in the ordinary course of business), except as permitted pursuant to Section 6.4(a) of and 6.5.
(c) notwithstanding the provisions in Section 6.4(a) and Section 6.4(b), merge with or into any other Person, except that the following shall be permitted:
(ai) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to merge with another Person if (A) such Borrower is the Borrower or to any other Wholly Owned Subsidiary of the Borrowersurviving entity, so long as (iB) if the transferee such merger involves a Person that is not a Subsidiary, such Subsidiary merger is a Guarantor Permitted Acquisition, and (iiC) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and immediately after giving effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and intomerger on a Pro Forma Basis, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists shall have occurred and be continuing; and
(ii) any Subsidiary may merge with or would result therefrom into or sell or otherwise transfer all or substantially all of its business, properties and assets to the Company or to another Subsidiary (including determined immediately thereafter); provided that (A) if such merger, sale or other transfer involves a Borrower, such Borrower shall be the surviving entity, (B) if such merger, sale or other transfer involves a Guarantor (but not a Borrower), such Guarantor shall either be the surviving entity or the surviving entity shall become an Additional Credit Party in connection therewith, (C) if such merger, sale or other transfer involves a Pledged Foreign Subsidiary, either the surviving entity shall be a Pledged Foreign Subsidiary or the Capital Stock of the surviving entity shall be pledged to the Administrative Agent in connection therewith pursuant to a Pledge Agreement on terms reasonably satisfactory to the Administrative Agent, (D) immediately after giving pro forma effect to such acquisition merger, sale or other transfer on a Pro Forma Basis, no Default or Event of Default shall have occurred and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as be continuing and (E) if such acquisition had occurred and merger, sale or other transfer involves a Person that is not a Subsidiary immediately prior to the consummation of such Indebtedness had been incurred transaction, such merger, sale, lease or other transfer shall qualify as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided further that (i1) Holdings neither the Dutch Borrower nor Alliance AG shall have -------- delivered to the Administrative Agentmerge with or into, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with or sell or transfer all or substantially all of its assets to, the provisions Company or any Domestic Subsidiary and (2) the Dutch Borrower and Alliance AG shall not merge with or into, or sell or transfer all or substantially all of this paragraph its assets to, each other and (j), and 3) no transaction shall be permitted pursuant to preceding clause (ii) Holdings or which could be reasonably expected to be adverse to the Borrower shall have given the Agents Lenders (including without limitation as to their structural position and the Banks at least 30 days prior notice of any Permitted Acquisition claims (each such notice a "Permitted Acquisition Notice"direct and indirect); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;respect.
Appears in 1 contract
Samples: Credit Agreement (Alliance One International, Inc.)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, nor will they permit any Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, or sell, transfer, lease or otherwise dispose of its property or assets or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:
(A) the sale, transfer, lease or other disposition of inventory and will not permit materials in the ordinary course of business and (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(ii) Dispositions resulting in Extraordinary Receipts for which such Credit Party or such Subsidiary has received any cash insurance proceeds or condemnation or expropriation award with respect to such property or assets;
(iii) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their respective Subsidiaries toSubsidiaries;
(iv) (A) the sale, wind uplease or transfer of property or assets from one Credit Party to another Credit Party, liquidate (B) the sale, lease or dissolve transfer of property or assets from a Subsidiary to a Credit Party, (C) the sale, lease or transfer of property or assets from a Subsidiary that is not a Credit Party to another Subsidiary that is not a Credit Party, (D) the dissolution of any Credit Party to the extent any and all assets of such Credit Party at the time of such dissolution are distributed to another Credit Party, (E) the dissolution of a Subsidiary that is not a Credit Party to the extent any and all assets of such Subsidiary at the time of such dissolution are distributed to another Subsidiary;
(v) the termination of any Hedging Agreement;
(vi) the sale, lease or transfer of property or assets not to exceed $10,000,000 in the aggregate in any fiscal year, excluding transfers made pursuant to Section 6.4(a)(iv); provided that (A) with respect to clauses (i)(A), (ii), (iii) and (vi) above, at least 75% of the consideration received therefor by the Credit Parties or any such Subsidiary shall be in the form of cash or Cash Equivalents, (B) after giving effect to any disposition pursuant to clause (vi) above, the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.9 hereof, recalculated for the most recently ended month for which information is available, and (C) with respect to clauses (iv), (v) and (vi) above, no Default or Event of Default shall exist or shall result therefrom; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall be entitled, without the consent of any Lender, to release its affairs Liens relating to the particular assets sold; or
(b) (i) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person, other than (A) Permitted Acquisitions and Permitted Investments and (B) except as otherwise limited or prohibited herein, purchases or other acquisitions of inventory, materials, property and equipment in the ordinary course of business, or (ii) enter into any transaction of merger or consolidation, except for (A) Investments 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, 6.5 so long as the proceeds of each Credit Party subject to such sale merger or exchange consolidation is used to acquire the surviving entity, (and results within 180 days of such sale B) (y) the merger or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings Subsidiary that is not a Credit Party with and into a Credit Party; provided that such Credit Party will be the surviving entity and (z) the merger or any consolidation of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of a Credit Party with and into another Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is will be the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j)corporation, and (iiC) Holdings the merger or consolidation of a Subsidiary that is not a Credit Party with and into another Subsidiary that is not a Credit Party. For avoidance of doubt, an issuance by the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons Equity Interests shall not interfering in any material respect with the business of Holdings or any of its Subsidiaries;be prohibited by this Section 6.4.
Appears in 1 contract
Samples: Credit Agreement (Osi Systems Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and Each of the Borrower Credit Parties will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, wind up:
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease to a third party 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 or agree to do so at a future time except the following, without duplication, shall be expressly permitted:
(i) Specified Sales;
(ii) Sale Leaseback Transactions to the extent permitted under Section 6.12;
(iii) the disposition of property or assets as a result of a Recovery Event;
(iv) the sale, lease, transfer or other disposition of (A) machinery, parts and equipment no longer used or useful in the conduct of the business of the Borrower or any of its Subsidiaries and (B) property and assets located at or used in connection with, or which are otherwise associated with, restaurants that are not material to the business of any Credit Party;
(v) the sale, lease or transfer of property or assets between Credit Parties, so long as the Liens of the Administrative Agent with respect to such property or assets remain in full force and effect and fully perfected after giving effect to such transaction;
(vi) the dissolution, liquidation or winding up of a Liquor License Subsidiary or any sale, transfer or other disposition of assets from a Liquor License Subsidiary to a Credit Party or another Liquor License Subsidiary;
(vii) [Intentionally Omitted]
(viii) the sale of restaurants owned by the Credit Parties to franchisees for fair market value so long as the aggregate consideration for all sales made in reliance on this clause (viii) does not exceed $35,000,000 in any fiscal year; and
(ix) the sale, lease or transfer of property or assets for fair market value so long as the aggregate consideration for all sales, leases and transfers of property or assets made in reliance on this clause (ix) does not exceed $50,000,000 during the term of this Agreement; provided, that in each case (other than inventory with respect to clause (v) above and dispositions of assets of a restaurant in connection with a refinishing, refurnishing or upgrade of such restaurant for consideration less than $100,000 in the ordinary course aggregate per restaurant) (A) at least 75% of business, including sales of inventory on consignment the consideration received therefor by any Credit Party or any such Subsidiary shall be in the ordinary course form of business)cash or Cash Equivalents, (B) after giving effect to the sale, lease, transfer or enter into other disposition of such property or assets and the repayment of Indebtedness (if any) with the proceeds thereof, the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.9 hereof and shall be in compliance with all other terms and conditions of this Agreement, and (C) no Event of Default shall exist or shall result from such sale, lease, transfer or other disposition of property or assets; provided, further, that with respect to any partnershipssale or transfer of property or assets permitted hereunder to an unrelated third party, joint ventures the Administrative Agent shall be entitled, without CHAR1\1357697v6 the consent of the Lenders or sale-leaseback transactionsthe Required Lenders, to release its Liens relating to the particular property or purchase assets sold; or
(b) (i) purchase, lease or otherwise acquire (in one a single transaction or a series of related transactions) any part all or substantially all of the property or assets or a majority of the Voting Stock of any Person (other than purchases or other acquisitions of inventory, materials goods, materials, property and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
as otherwise limited or prohibited herein) or (aii) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course any transaction of business with respect to real merger or personal property;
consolidation, except for (bA) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
Permitted Acquisitions, (cB) the advances, investments and loans or acquisitions permitted pursuant to Section 9.05;
6.6, and (dC) Holdings and its Subsidiaries may sell the merger or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of Credit Party with and into another Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is will be the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;corporation.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, and nor will not they permit any of their respective Subsidiaries Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidationaffairs, or convey, sell, lease transfer, lease, consummate a Division as the Dividing Person 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), each a “Disposition”) or enter into any partnerships, joint ventures or sale-leaseback transactions, or purchase or otherwise acquire (in one or agree to do so at a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Personfuture time, except that the following following, without duplication, shall be expressly permitted:
(aA) Holdings the sale, transfer, lease or other disposition of inventory and its Subsidiaries may, as lessee or lessor, enter into operating leases materials in the ordinary course of business with respect to real or personal propertyand (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(cii) the advancessale, investments and loans permitted pursuant transfer or other disposition of property or assets to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising an unrelated party not in the ordinary course of business, but only in connection with business where and to the compromise or collection thereofextent that they are the result of a Recovery Event;
(eiii) Holdings the sale, lease, transfer or other disposition of (A) machinery, parts and its Subsidiaries may sell equipment no longer used or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange useful in the acquisition of) replacement items of machinery or equipment which are the functional equivalent conduct of the item business of equipment so sold the Credit Parties or exchanged;
any of their Subsidiaries and (fB) Holdings and its Subsidiaries mayobsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(iv) the sale, licenselease or transfer of property or assets from one Credit Party to another Credit Party or dissolution of any Credit Party to the extent any and all assets are distributed to another Credit Party;
(v) the termination of any Hedging Agreement;
(vi) Dispositions of equipment or real property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property within twelve (12) months of such Disposition or (B) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property within 12 months of such Disposition;
(vii) the licensing of Intellectual Property in the ordinary course of business consistent with past practice;
(viii) Dispositions by the Borrower or any Subsidiary; provided that at any time after the Collateral Event, as licensor (i) with respect to asset sales for more than $300,000,000 per disposition or licenseeseries of related dispositions, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as at least 75% of the consideration for any such license asset sale shall consist of cash or cash equivalents (provided that for purposes of the 75% cash consideration requirement (x) the amount of any Indebtedness or other liabilities of the Borrower or any Subsidiary (as shown on such person’s most recent balance sheet or in the notes thereto) that are assumed by Holdings or its Subsidiaries the transferee of any such assets, (y) the amount of any trade-in its capacity as licensor is permitted to be assigned pursuant value applied to the Security Agreement purchase price of any replacement assets acquired in connection with such asset sale, and (z) any securities received by the Borrower or such Subsidiary from such transferee that are converted by the Borrower or such Subsidiary into cash or cash equivalents (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to cash or cash equivalents received) within 270 days following the Borrower or to any other Wholly Owned Subsidiary closing of the Borrowerapplicable asset sale, so long as (ishall each be deemed to be cash or cash equivalents) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted immediately prior to the Collateral Agent for consummation of such asset sale, no Event of Default shall have occurred and be continuing and no Event of Default shall result therefrom;
(ix) the benefit sale, lease or transfer of property or assets as part of a Sale and Leaseback Transaction;
(x) the Secured Creditors merger of a Credit Party or a Subsidiary thereof with another Credit Party or a Subsidiary thereof to the extent permitted by Section 6.4(b)(ii) below;
(xi) Dispositions of Equity Interests in Permitted JVs pursuant to the Security Documents in terms of the assets joint venture or equivalent agreements governing such Permitted JVs so transferred shall remain in full force and effect and perfected (to at least the same extent long as in effect immediately prior to such transfer)joint venture or equivalent agreements are not solely between Persons that are Credit Parties, Subsidiaries or Affiliates of Credit Parties;
(hxii) any Wholly Owned terminations of leases by a Credit Party or a Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets ordinary course of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition business that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons do not interfering interfere in any material respect with the business of Holdings the Credit Parties or their Subsidiaries; and
(xiii) any Subsidiary that is an LLC may consummate a Division as the Dividing Person if, immediately upon the consummation of its the Division, the assets of the applicable Dividing Person are held by one or more Subsidiaries at such time, or, with respect to assets not so held by one or more Subsidiaries;, such Division, in the aggregate, would otherwise result in a Disposition permitted by Section 6.4(a)(viii) or (x) above; and
Appears in 1 contract
Samples: Credit Agreement (Mednax, Inc.)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and None of the Borrower will not, and will not permit any of their respective Subsidiaries to, wind upCredit Parties will:
(a) dissolve, liquidate or dissolve wind up its affairs affairs, or enter into any transaction of merger or consolidation; provided, or conveyhowever, sellthat, 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists would be directly or would indirectly caused as a result therefrom thereof, (including i) Speedway Motorsports may merge or consolidate with any of its Subsidiaries provided Speedway Motorsports is the surviving corporation or (ii) any Credit Party (other than Speedway Motorsports) may merge or consolidate with any other Credit Party (other than the Borrowers);
(b) sell, lease, transfer or otherwise dispose of any Property other than (i) the sale of inventory in the ordinary course of business for fair consideration, (ii) the sale or disposition of machinery and equipment no longer used or useful in the conduct of such Person's business, (iii) subject to the terms of Section 8.8 and 8.12, other sales and dispositions provided that (A) after giving pro forma effect to such acquisition sale or other disposition, the aggregate book value of assets sold or otherwise disposed of pursuant to this clause (iii) since the Closing Date does not exceed $10,000,000 and --- ----- (B) after giving effect on a Pro Forma Basis to such sale or other disposition, no Default or Event of Default would exist hereunder; or
(c) except as otherwise permitted by Section 8.4(a) or 8.5, acquire all or any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as portion of the first day Capital Stock or securities of any other Person or purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) all or any substantial part of the most recently completed Test Period (including Property of any other Permitted Acquisition that occurredPerson provided, and related Indebtedness that was incurredhowever, during that, so long as no Default or subsequent to such Test Period))Event of Default would be caused as a result thereof on an actual or Pro Forma Basis, Holdings or then any of its Wholly Owned Subsidiaries Credit Party may consummate a Permitted Acquisition; provided that (i) Holdings acquire an interest in additional motor speedways, whether by merger, stock purchase or asset purchase; provided, however, that the aggregate Cash Consideration paid for such acquisitions in any fiscal year shall have -------- delivered to not exceed 25% of the Administrative Agent, Consolidated Net Worth of Speedway Motorsports at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j)immediately preceding fiscal year end, and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect consummate other acquisitions consistent with the business nature of Holdings the Borrowers' business, whether by merger, stock purchase or any of its Subsidiaries;asset purchase; provided, however, that the Cash Consideration paid for such other acquisitions shall not exceed $25,000,000 in the aggregate.
Appears in 1 contract
Samples: Credit Agreement (Inex Corp)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, nor will they permit any Subsidiary (other than an Immaterial Subsidiary or a Transitional Subsidiary) to,
(a) dissolve, liquidate or wind up its affairs, or sell, transfer, lease or otherwise dispose of its property or assets or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:
(A) the sale, transfer, lease or other disposition of inventory and will not permit materials in the ordinary course of business, (B) the conversion of cash into Cash Equivalents and Short-Term Investments and Cash Equivalents and Short-Term Investments into cash and (C) the dissolution, liquidation or winding up of any Immaterial Subsidiary or Transitional Subsidiary; provided that any assets of such Immaterial Subsidiary or Transitional Subsidiary shall be transferred to a Credit Party or Subsidiary thereof in connection therewith;
(ii) Recovery Events for which the Credit Parties or such Subsidiary has received any cash insurance proceeds or condemnation or expropriation award with respect to such property or assets to the extent Net Cash Proceeds from such Recovery Event are used to make mandatory prepayments or are reinvested pursuant to Section 2.4(b)(iii);
(iii) the sale, lease, transfer or other disposition of machinery, parts, equipment and other obsolete, damaged, surplus or worn out assets or other assets no longer used or useful in the conduct of the business of the Credit Parties or any of their respective Subsidiaries Subsidiaries;
(iv) the sale, lease or transfer of property or assets from one Credit Party to another Credit Party;
(v) the termination of any Hedging Agreement;
(vi) the sale of (A) obsolete Vessels, (B) any Spare Vessel and (C) not more than two other Vessels during the term of this Agreement that are not of the type contemplated by clause (A) or (B);
(vii) (A) leases, subleases, licenses and sublicenses of assets and Intellectual Property in the ordinary course of business, (B) sales, transfers and other dispositions not otherwise included in clause (A) of containers in the ordinary course of business and (C) charters, subcharters, leases and subleases of Vessels in the ordinary course of business;
(viii) sale and leaseback transactions permitted under Section 7.12;
(ix) subject to compliance with the terms of Section 5.11(b), exchanges of Vessels for Vessels (with comparable fair market value) that will provide comparable levels of service in the same trade lanes and exchanges, trade-ins, swaps or other contemporaneous transfers of containers, chassis, tractors, cranes and container handling equipment;
(x) the sale, transfer or disposition of accounts in connection with the collection or compromise thereof in the ordinary course of business;
(xi) Investments made in accordance with Section 7.5;
(xii) Capital Stock issued in connection with Permitted Acquisitions;
(xiii) Capital Stock issued in connection with transactions permitted under Section 7.10;
(xiv) [Reserved]
(xv) other than the items set forth in clauses (i)-(xiv), the sale, lease or transfer of property or assets not to exceed $2,500,000 in the aggregate in any fiscal year;
(xvi) the sale, wind-up, shutdown or other disposition (in one or more transactions) of all or substantially all of the current business of Horizon Logistics, LLC and its subsidiary Aero Logistics, LLC as integrated third-party logistics providers of transportation and distribution solutions (including transportation management, full truckload and less-than truckload transportation brokerage, international ocean transportation as a Non-Vessel Operating Common Carrier, expedited ground and international air, and warehousing and distribution services) to client-shippers requiring transportation services principally to, wind from and within North America (such business, the “Logistics Business”), whether such sale or sales, wind-up, liquidate shutdown or dissolve other dispositions are consummated via one or more dispositions of the Capital Stock in such Subsidiaries and/or via one or more dispositions of the assets and liabilities of the Logistics Business;
(xvii) the sale or other disposition of (i) ownership interests in 3 refurbished Hitachi cranes with tag numbers H209-14, H209-16 and H209-17 and the so-called “Subic Bay crane” with tag number HC01110600000, each located in Guam, and (ii) interests in Rubber Tire Gantry Cranes with serial numbers G924 and G925, each located in Hawaii;
(xviii) the sale or other disposition of the three cranes not yet placed into service that were initially purchased for use in Horizon Lines, LLC’s Anchorage, Alaska terminal; and
(xix) with respect to the trans-Pacific service of the Credit Parties and their Subsidiaries, the entry into vessel sharing arrangements with other trans-Pacific carriers and/or the shutdown or other disposition of the trans-Pacific service and the assets related thereto, in each case to the extent not causing or resulting in a Material Adverse Effect. provided that (A) with respect to clauses (i)(A), (vi), (vii)(B), (xiv), (xv) and (xvii) through (xix) above, at least 75% of the consideration received therefor by the Credit Parties or any such Subsidiary shall be in the form of cash or Cash Equivalents and Short-Term Investments, (B) the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in the First Lien Credit Agreement, recalculated for the most recently ended quarter for which information is available, and (C) with respect to clauses (iii), (vi), (vii), (viii), (ix), (xvi), (xvii), (xviii) and (xix) above, no Default or Event of Default shall exist or shall result therefrom; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall be entitled, without the consent of any of the Lenders, to release its affairs Liens relating to the particular assets sold; or
(b) (i) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person, other than (A) Permitted Acquisitions and Permitted Investments and (B) except as otherwise limited or prohibited herein, purchases or other acquisitions of inventory, materials, property and equipment in the ordinary course of business, or (ii) enter into any transaction of merger or consolidation, except for (A) Investments 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, 7.5 so long as the proceeds of each Credit Party subject to such sale merger or exchange consolidation is used to acquire the surviving entity, (and results within 180 days of such sale B) (y) the merger or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings Subsidiary that is not a Credit Party with and into a Credit Party; provided that such Credit Party will be the surviving entity and (z) the merger or any consolidation of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of a Credit Party with and into another Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is will be the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j)corporation, and (iiC) Holdings the merger or the Borrower shall have given the Agents consolidation of a Subsidiary that is not a Credit Party with and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice into another Subsidiary that is not a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Credit Party.
Appears in 1 contract
Samples: Second Lien Term Loan Facility (Horizon Lines, Inc.)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and No Credit Parties will, nor will any Credit Party permit any Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, or sell, transfer, lease or otherwise dispose of its property or assets (including, without limitation, any Equity Interest of any Subsidiary of the Borrower will notbut excluding any Equity interests of any Unrestricted Subsidiary) or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:
(A) the sale, transfer, lease or other disposition of inventory and will materials in the ordinary course of business, (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash and (C) the sale of defaulted receivables in the ordinary course of business and not permit as part of an accounts receivable financing transaction;
(ii) a Facility Disposition;
(iii) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their respective Subsidiaries toSubsidiaries;
(iv) the sale, wind uplease or transfer of property or assets from one Credit Party to another Credit Party;
(v) the termination of any Hedging Agreement;
(vi) the sale, liquidate lease or dissolve transfer of any property or assets not described in clauses (i) through (v) or (vii) through (viii) of this Section 6.4(a);
(vii) leases, licenses (on a non-exclusive basis with respect to intellectual property), or subleases or sublicenses (on a non-exclusive basis with respect to intellectual property) of any real or personal property in the ordinary course of business; and
(viii) Permitted Liens and Restricted Payments permitted by Section 6.10; provided, that (A) with respect to clauses (ii) and (vi) above, at least 75% of the consideration received therefor by the Credit Parties or any such Subsidiary shall be in the form of cash or Cash Equivalents, (B) after giving effect to any Facility Disposition pursuant to clause (ii) above or Asset Disposition pursuant to clause (vi) above, the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 6.16 hereof, recalculated as of the end of the most recently ended fiscal quarter for which financial statements are available, (C) with respect to clauses (ii), (iv), (v) and (vi) above, no Default or Event of Default shall exist or shall result therefrom, and (D) no sale, transfer, lease or other disposition of assets shall be permitted hereby (other than sales, transfers, leases or other dispositions pursuant to Section 6.4(a)(iv)) unless such sale, transfer, lease or other disposition is for fair market value; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall, without the consent of any Lender, release its affairs Liens relating to the particular assets sold; or
(b) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person, other than:
(i) Permitted Investments;
(ii) inventory, materials, property and equipment in the ordinary course of business;
(iii) with the proceeds of any Asset Disposition or Extraordinary Receipt pursuant to Section 2.3(c)(i) or Section 2.3(c)(v), as applicable; or
(iv) capital expenditures;
(c) 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permittedexcept:
(ai) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipmenta Permitted Investment, so long as the proceeds of each such sale continuing or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to surviving person shall be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned a Subsidiary of the Borrower, so long as (i) which shall be a Credit Party if the transferee is merging Subsidiary was a Subsidiary, such Subsidiary is a Guarantor Credit Party and which together with each of its Subsidiaries shall have complied with Section 5.9 and Section 5.11,
(ii) in connection with a Permitted Acquisition, provided that following any such merger or consolidation (A) involving the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and intoBorrower, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation Person, (B) involving a Domestic Subsidiary, the surviving or resulting entity shall be a Credit Party that is a wholly owned Subsidiary, and (C) involving a Foreign Subsidiary, the surviving or resulting entity shall be a wholly owned subsidiary; or
(iii) the merger or consolidation (A) of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and intointo the Borrower in a transaction in which the Borrower is the survivor, or be dissolved or liquidated into, (B) of any Wholly Owned Subsidiary of the Borrower so long as into or with any Credit Party (iother than the Borrower) such Wholly Owned Subsidiary in a transaction in which the surviving or resulting entity is a Guarantor Credit Party and, in the case of each of clauses (A) and is (B), no Person other than a Credit Party receives any consideration and (C) the surviving corporation merger or consolidation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit Subsidiary of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Borrower that is not a Credit Party into or with any other Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition Borrower that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate is not a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Credit Party.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Parent will not, and nor will not it permit any of their respective Subsidiaries GCA Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease or otherwise dispose of (its property or assets or agree to do any so at a future time except the following, without duplication, shall be expressly permitted:
(i) Specified Sales;
(ii) the sale, transfer, lease or other disposition of the foregoing at any future time) all or any part of its property or assets (other than inventory A) to an unrelated party not in the ordinary course of businessbusiness (other than Specified Sales), including sales where and to the extent that they are the result of inventory on consignment a Recovery Event or (B) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the ordinary course conduct of business)the business of the Parent or any of the GCA Subsidiaries, as appropriate, in its reasonable discretion, so long as and the net proceeds therefrom are used to repair or enter into replace damaged property or to purchase or otherwise acquire new assets or property, provided that such purchase or acquisition is committed to within 180 days of receipt of the net proceeds and such purchase or acquisition is consummated within 270 days of receipt of such proceeds;
(iii) the sale, lease or transfer of property or assets (at fair market value) from the Parent to any partnershipsother GCA Credit Party;
(iv) the sale, joint ventures lease or transfer of property or assets from a Credit Party other than the Parent to another Credit Party;
(v) the sale, lease or transfer of property or assets (at fair market value) not to exceed $50,000,000 in the aggregate in any fiscal year; and
(vi) the sale, transfer, contribution, conveyance or other disposition of accounts receivable and associated collateral, lockbox and other collection accounts, records and/or proceeds in connection with any accounts receivable securitization, non-leaseback transactionsrecourse indebtedness or any Purchase Paper Facility; or
(b) (i) purchase, or purchase lease or otherwise acquire (in one a single transaction or a series of related transactions) any part of the property GCA Property or assets of any Person (other than purchases or other acquisitions of inventory, materials leases, materials, GCA Property and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
as otherwise limited or prohibited herein) or (aii) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course any transaction of business with respect to real merger or personal property;
consolidation, except for (bA) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
Investments or acquisitions (cincluding Permitted Acquisitions) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j)8B.5, and (iiB) Holdings the merger or consolidation of a GCA Credit Party or other GCA Subsidiary with and into another GCA Credit Party, provided that if the Borrower shall have given Parent is a party thereto, the Agents and Parent will be the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;surviving corporation.
Appears in 1 contract
Samples: Fourth Amendment to Certain Operative Agreements (West Corp)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, nor will they permit any Restricted Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, or sell, transfer, lease or otherwise dispose of its property or assets or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:
(i) any Restricted Subsidiary of the Company (other than Holdco and will Opco) may be liquidated, wound up or dissolved, and all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of (A) to the extent it is a Restricted Subsidiary of Holdco, to any Opco Credit Party and (B) to the extent it is not permit a Restricted Subsidiary of Holdco, to any Credit Party;
(ii) (A) the sale, transfer, lease or other disposition of inventory and materials in the ordinary course of business and (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(iii) Recovery Events;
(iv) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their respective Restricted Subsidiaries;
(A) the sale, lease or transfer of property or assets from a Credit Party to another Credit Party and (B) the sale, lease or transfer of property or assets from an Opco Credit Party to another Opco Credit Party;
(vi) in order to resolve disputes that occur in the ordinary course of business, the Company and its Restricted Subsidiaries tomay discount or otherwise compromise for less than the face value thereof, wind upnotes or accounts receivable;
(vii) the Company and its Restricted Subsidiaries may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of such Subsidiary if required by applicable law;
(viii) the grant by the Company or any of its Restricted Subsidiaries in the ordinary course of business of a license to any Person for the use of any Intellectual Property owned by the Company or any of its Restricted Subsidiaries;
(ix) the unwinding of any derivative instruments or agreements;
(x) the sale or disposition of Investments under clauses (f), liquidate (j), (k) and (n) of the definition of Permitted Investments (other than Investments received in connection with any Asset Disposition permitted by subsection (xv) below);
(xi) the sublease of any real or dissolve personal property in the ordinary course of business;
(xii) sales, assignments, transfers or dispositions of accounts receivable in the ordinary course of business for purposes of collection;
(xiii) the sale of the real property and improvements located at 0 Xxxx Xxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxxxx;
(xiv) the sale, lease or transfer of any property or assets acquired pursuant to a Permitted Acquisition or contributed to a Credit Party or an Opco Credit Party by the Company or a Credit Party at any time after the Closing Date; or
(xv) sales of revenue-producing assets (or of all of the outstanding Capital Stock of a Subsidiary (other than Holdco and Opco) that owns such assets):
(A) to the extent the Attributable Revenues of all such assets (and Subsidiaries) transferred in all such asset sales during any period of 365 consecutive days does not exceed 16.5% of Pro Forma Revenues for the most recent four fiscal quarter period for which Pro Forma Revenues can then be determined; provided that (1) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof and (2) the proceeds of such asset sales shall be applied as required by subsection 2.9(b)(iii); or
(B) to the extent the Attributable Revenues of all assets (and Subsidiaries) transferred in all such asset sales during any period of 365 consecutive days exceeds 16.5% but does not exceed 33% of Pro Forma Revenues for the most recent four fiscal quarter period for which Pro Forma Revenues can then be determined; provided that (1) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof, (2) the consideration received in connection with all asset sales made pursuant to this clause (B), when added to the consideration received in connection with all asset sales made pursuant to clause (A) above, shall be not less than a multiple of 8.25 times the Attributable EBITDA of all assets (and Subsidiaries) transferred in all such asset sales in the aggregate during such 365-day period and (45) the proceeds of such asset sales shall be applied as required by subsection 2.9(b)(iii); provided that after giving effect to any Asset Disposition pursuant to clause (xv) above, no Default or Event of Default shall exist or shall result therefrom; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall be entitled, without the consent of the Required Lenders, to release its affairs Liens relating to the particular assets sold; or
(b) (i) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person, other than (A) Permitted Acquisitions and (B) except as otherwise limited or prohibited herein, purchases or other acquisitions of inventory, materials, property and equipment in the ordinary course of business, or (ii) enter into any transaction of merger or consolidation, except for (A) Investments 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
6.5, (dB) Holdings and its Subsidiaries may sell the merger or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge Credit Party with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisitioninto another Credit Party; provided that if the Company is a party thereto, the Company will be the surviving entity, (iC) Holdings shall have -------- delivered to the Administrative Agentmerger or consolidation of a Subsidiary that is not a Credit Party with and into a Credit Party; provided, at that such Credit Party will be the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), surviving entity and (iiD) Holdings the merger or the Borrower shall have given the Agents consolidation of a Subsidiary that is not a Credit Party with and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice into a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons Subsidiary that is not interfering in any material respect with the business of Holdings or any of its Subsidiaries;a Credit Party.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, nor will they permit any Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, or sell, transfer, lease or otherwise dispose of its property or assets (each a “Disposition”) or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:
(A) the sale, transfer, lease or other disposition of inventory and will materials in the ordinary course of business and (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(ii) the sale, transfer or other disposition of property or assets to an unrelated party not permit in the ordinary course of business where and to the extent that they are the result of a Recovery Event; to the extent Net Cash Proceeds from such Recovery Event are reinvested or used to make mandatory prepayments pursuant to Section 2.7(b)(iv);
(iii) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their respective Subsidiaries toSubsidiaries;
(iv) the sale, wind uplease or transfer of property or assets from one Credit Party to another Credit Party or dissolution of any Credit Party (other than the Borrower) to the extent any and all assets of such Credit Party are distributed to another Credit Party;
(v) the termination of any Hedging Agreement;
(vi) the sale, liquidate lease, transfer, closure or dissolve other disposition of Restaurants, the termination or non-renewal of leases or the subletting of Restaurants, in each case as determined to be prudent in the reasonable judgment of the senior officers of the Borrower;
(vii) Sale Leaseback transactions to the extent permitted under Section 6.12; and
(viii) the sale, lease or transfer of property or assets not to exceed $2,500,000 in the aggregate in any fiscal year; provided that (A) with respect to clauses (ii), (iii), (vi), (vii) and (viii) above, at least 75% of the consideration received therefor by the Credit Parties or any such Subsidiary shall be in the form of cash or Cash Equivalents, assets used in the business or Capital Stock, (B) after giving effect to any Disposition pursuant to clause (vii) above, the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.9 hereof, recalculated for the most recently ended fiscal quarter for which information is available and (C) with respect to clause (vii) above, no Default or Event of Default shall exist or shall result therefrom; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall, without the consent of any Lender, release its affairs Liens relating to the particular assets sold; or
(b) (i) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person, other than (A) Permitted Acquisitions, (B) the lease or acquisition of real property in connection with Permitted Construction Transactions; (C) except as otherwise limited or prohibited herein, purchases or other acquisitions of inventory, materials, property and equipment in the ordinary course of business, (D) the acquisition of certain infrastructure and corporate assets of the Spin-Off Parties in connection with the Spin-Off, (E) the acquisition of the Pollo Tropical Trademarks and (F) Investments permitted by Section 6.5 or (ii) enter into any transaction of merger or consolidation, except for (A) Investments 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, 6.5 so long as the proceeds of each Credit Party subject to such sale merger or exchange consolidation is used to acquire the surviving entity, (and results within 180 days of such sale B) (y) the merger or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings Subsidiary that is not a Credit Party with and into a Credit Party; provided that such Credit Party will be the surviving entity and (z) the merger or any consolidation of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of a Credit Party with and into another Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is will be the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j)corporation, and (iiC) Holdings the merger or the Borrower shall have given the Agents consolidation of a Subsidiary that is not a Credit Party with and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice into another Subsidiary that is not a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Credit Party.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the The Parent Borrower will not, and nor will not it permit any of their respective Subsidiaries Restricted Subsidiary to, wind up, liquidate or dissolve its affairs or ,
(a) enter into any transaction of merger or consolidationconsolidation or amalgamation, or conveyliquidate, sell, lease wind up or otherwise dispose of dissolve itself (or agree to do suffer any of the foregoing at liquidation or dissolution);
(b) acquire any future time) all or any part of its property business or assets from, or Capital Stock of, or be a party to any acquisition of, any Person except:
(i) for purchases of inventory and other than inventory assets to be sold or used in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(bii) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Investments permitted under Section 9.076.5 hereof; and
(iii) Permitted Acquisitions;
(c) the advancesconvey, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell sell, lease, transfer or discountotherwise dispose of, in each case one transaction or a series of transactions, any part of its business or assets, whether now owned or hereafter acquired (including, without recourselimitation, accounts receivable arising in the ordinary course of businessreceivables and leasehold interests), but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);excluding:
(i) any Wholly Owned Subsidiary Excluded Disposition;
(ii) obsolete or worn-out Property, tools or equipment no longer used or useful in its business (other than any Excluded Disposition) or real Property no longer used or useful in its business;
(iii) any sale, lease or transfer of the Borrower may merge assets from a Credit Party to another Credit Party;
(iv) any sale of Transferred Assets by such Person to a Receivables Financier in connection with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower a Permitted Receivables Financing; and
(v) other assets so long as the aggregate amount thereof sold or otherwise disposed of in any single fiscal year by the Parent Borrower and its Restricted Subsidiaries shall not have a book value in excess of ten percent of the book value of the total assets of the Parent Borrower and its Restricted Subsidiaries owned on the first day of such fiscal year; provided, that in each case with respect to subsections (iv) and (vi) above at least 85% of the consideration received therefor by the Parent Borrower or any such Wholly Owned Restricted Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets form of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution cash or liquidation);Cash Equivalents; and
(jd) Notwithstanding the foregoing provisions of this Section 6.4, so long as no Default or Event of Default then exists or would result therefrom (including shall have occurred and be continuing, and after giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day succeeding transactions, no Default or Event of Default would exist hereunder and so long as the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent Liens created under the Security Documents continue to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that be in effect:
(i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery any Restricted Subsidiary of the Permitted Acquisition Notice, Parent Borrower may be merged or consolidated with or into: (A) the Parent Borrower if the Parent Borrower shall be the continuing or surviving corporation or (B) any other Subsidiary (so long as such surviving Subsidiary is either (x) a certificate of the Chief Financial Officer of Holdings showing compliance Credit Party or (in reasonable detail as to pro forma calculationsy) with all of the provisions of this paragraph (jan Additional Credit Party), and ;
(ii) Holdings any Restricted Subsidiary of the Parent Borrower may sell, lease, transfer or the Borrower shall have given the Agents and the Banks at least 30 days prior notice otherwise dispose of any Permitted Acquisition or all of its assets (each such notice upon voluntary liquidation or otherwise) to the Parent Borrower or a "Permitted Acquisition Notice")Restricted Subsidiary of the Parent Borrower; -----------------------------and
(kiii) leases any Unrestricted Subsidiary may be sold, liquidated, wound up or subleases granted by Holdings dissolved, or may sell, lease, transfer or otherwise dispose of any or all of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;assets.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower will not, and will not permit any (a) Whether in one transaction or a series of their respective Subsidiaries totransactions, wind up, liquidate or dissolve its affairs affairs, or enter into any transaction of merger or consolidation, or convey, sell, lease sell or otherwise dispose of (any item of Product, or any capital stock of any Subsidiary or any of its other property, stock or assets or agree to do or suffer any of the foregoing at foregoing, except for: (i) the merger by any future time) all or any part of its property or assets solvent Guarantor (other than inventory the Borrowers) into or the transfer of all of its assets to the Borrowers or another Guarantor if after such merger no Default or Event of Default exists; (ii) licenses for the distribution, exhibition or other exploitation of Product pursuant to Distribution Agreements entered into in the ordinary course of business, including ; (iii) outright sales of inventory on consignment in Product within the ordinary course of businessbusiness (i.e. no library sales), or enter into any partnerships, joint ventures or sale; (iv) outright sales of non-leaseback transactions, or purchase or otherwise acquire film assets sold for not less than fair market value; (in one or a series v) outright sales of related transactions) any part Product outside of the property or assets ordinary course of business (other including library sales) if sold for not less than purchases fair market value and not in excess of $20,000,000 in the aggregate; (vi) sales or other acquisitions dispositions of inventory, materials and equipment in the ordinary course of businessbusiness which are obsolete or no longer useful in the operation of the businesses of the Borrowers or their Subsidiaries; (vii) the sale of Product to FilmCo as part of the LGFF Slate Transaction, (viii) the sale of Product to SlateCo as part of the Permitted Slate Financing, (ix) the sale of membership interests in FilmCo to LGEI and Pride Pictures LLC as part of the LGFF Slate Transaction, (x) the sale of revenue participations in Product to SGF as part of the SGF Co-Financing Arrangement and (xi) the sale of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect asset by one Credit Party to real or personal property;another Credit Party.
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advancesEnter into any Acquisition, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as unless (i) if immediately after giving effect to such Acquisition the transferee is a Subsidiaryaggregate outstanding Loans and Letters of Credit are less than 75% of the Borrowing Base (for the purposes of such calculation, the Borrowers shall be entitled to treat all receivables of such Subsidiary is a Guarantor newly acquired Person as Eligible Receivables, provided that such Person and the subsidiaries of such Person to whom such receivables are owed become Credit Parties immediately following such Acquisition and such receivables satisfy all other criteria set forth in the definition of “Eligible Receivables”), (ii) such Acquisitions are within the security interests granted to the Collateral Agent for the benefit scope of the Secured Creditors pursuant to the Security Documents permitted business activities set forth in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation Section 6.13 hereof and (iiiii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including shall be continuing after giving effect on a pro forma effect basis to any such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;.
Appears in 1 contract
Samples: Credit Agreement (Lions Gate Entertainment Corp /Cn/)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and Each of the Borrower Credit Parties will not, and nor will not it permit any of their respective its Restricted Subsidiaries to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, 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 except the following, without duplication, shall be expressly permitted:
(i) the sale, transfer (including by way of license), lease or other than inventory disposition of inventory, materials, tools, property, equipment, software and intellectual property, whether now owned or hereafter acquired, in the ordinary course of businessbusiness (including , including sales without limitation, Dispositions of inventory on consignment vehicles for purposes of fleet maintenance that are substantially consistent with the Credit Parties’ past practices and that are in the ordinary course of business), including any of the foregoing with an Unrestricted Subsidiary (subject to Section 8.06);
(ii) the sale, lease, transfer or enter into other disposition of obsolete or worn-out property or assets, whether now owned or hereafter acquired, in the ordinary course of business;
(iii) the sale, transfer or other disposition of cash and Cash Equivalents for fair market value;
(iv) Dispositions of accounts receivable in connection with the collection or compromise thereof in the ordinary course of business;
(v) licenses, sublicenses, leases or subleases granted to others not interfering in any partnershipsmaterial respect with the business of the Borrower and its Subsidiaries;
(vi) the disposition of property or assets as a direct result of a Recovery Event;
(A) the sale, joint ventures lease or transfer (including by way of license) of property or assets between Credit Parties, (B) the sale, lease or transfer (including by way of license) of other property or assets between (1) any Credit Party and any Restricted Subsidiary in an aggregate amount not to exceed $50,000,000 during the term of this Credit Agreement and (2) subject to Section 8.06, any Credit Party or any Restricted Subsidiary and any Unrestricted Subsidiary in an aggregate amount not to exceed $50,000,000 during the term of this Credit Agreement, (C) the sale, lease or transfer (including by way of license) of property or assets between Subsidiaries that are not Credit Parties;
(viii) (A) the sale, lease or transfer (including by way of license) of property or assets not to exceed $50,000,000 in the aggregate in any fiscal year and (B) the sale lease or transfer (including by way of license) of property or assets not to exceed $35,000,000 during the term of this Credit Agreement; provided, that the aggregate amount of property or assets sold, leased or transferred (including by way of license) pursuant to the immediately foregoing clauses (A) and (B) shall not exceed $60,000,000 in the aggregate in any fiscal year;
(ix) the liquidation and/or dissolution of any Immaterial Domestic Subsidiary or any Immaterial Foreign Subsidiary; provided that the Credit Parties shall remain in compliance with Section 7.09(b) after giving effect to any such liquidation or dissolution;
(x) Dispositions and Investments permitted under Section 8.05; and
(xi) Dispositions of non-leaseback transactionscore assets acquired in a Permitted Acquisition; provided that (A) such Dispositions are completed within eighteen (18) months of such Permitted Acquisition and (B) such non-core assets do not exceed twenty-five percent (25%) of the total tangible assets acquired in such Permitted Acquisition. provided, that, in the case of clauses (i), (iii) and (vi) above, at least seventy-five percent (75%) of the consideration received therefor by the Borrower or purchase any such Subsidiary is in the form of cash or Cash Equivalents; or
(b) (i) purchase, lease or otherwise acquire (including by way of license), whether in one a single transaction or a series of related transactions) any part of , the property or assets of any Person (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Personmaterials, except that the following shall be permitted:
(a) Holdings and its Subsidiaries maytools, as lessee property, equipment, software or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising intellectual property in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent including any of the item of equipment so sold foregoing with an Unrestricted Subsidiary (subject to Section 8.06), except as otherwise limited or exchanged;
(fprohibited herein) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent enter into any transaction of merger or consolidation, except, in each case, for the benefit of the Secured Creditors (A) Investments or acquisitions permitted pursuant to Section 8.05, (B) the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned merger or consolidation of a Credit Party or other Subsidiary of the Borrower may merge with and intointo another Credit Party (with the Credit Party being the surviving entity), or be dissolved or liquidated into, the Borrower so long as (iC) the Borrower is the surviving corporation merger or consolidation of an Unrestricted Subsidiary with and into any such merger, dissolution Restricted Subsidiary or liquidation and another Unrestricted Subsidiary or (iiD) the security interests granted to the Collateral Agent for the benefit merger or consolidation of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned a Restricted Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;into another Restricted Subsidiary.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and Each of the Borrower Credit Parties will not, and nor will not it permit any of their respective its Restricted Subsidiaries to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, 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 except that the following, without duplication, shall be expressly permitted:
(i) the sale, transfer (including by way of license), lease or other than inventory disposition of inventory, materials, tools, property, equipment, software and intellectual property whether now owned or hereafter acquired, in the ordinary course of businessbusiness (including, including sales without limitation, Dispositions of inventory on consignment vehicles for purposes of fleet maintenance that are substantially consistent with the Credit Parties’ past practices and that are in the ordinary course of business), or enter into including any partnerships, joint ventures or sale-leaseback transactionsof the foregoing with an Unrestricted Subsidiary (subject to Section 8.06) (it being understood that a Disposition of all of the Equity Interests of, or purchase all or substantially all of the assets of, a Subsidiary or a Disposition of a line of business or a division of a Credit Party or a Subsidiary shall not constitute Disposition in the ordinary course of business);
(ii) the sale, lease, transfer or other disposition of obsolete or worn-out property or assets, whether now owned or hereafter acquired, in the ordinary course of business;
(iii) the sale, transfer or other disposition of cash and Cash Equivalents for fair market value;
(iv) Dispositions (A) of accounts receivable in connection with the collection or compromise thereof in the ordinary course of business and (B) made as part of a Permitted Receivables Transaction;
(v) licenses, sublicenses, leases or subleases granted to others not interfering in any material respect with the business of the Borrower and its Subsidiaries;
(vi) the disposition of property or assets as a direct result of a Recovery Event;
(vii) (A) the sale, lease or transfer (including by way of license) of property or assets between Credit Parties, (B) the sale, lease or transfer (including by way of license) of other property or assets between (1) any Credit Party and any Restricted Subsidiary that is not a Credit Party in an aggregate amount not to exceed $60,000,000 during the term of this Credit Agreement (commencing on the First Amendment Effective Date) and (2) subject to Section 8.06, any Credit Party or any Restricted Subsidiary that is not a Credit Party and any Unrestricted Subsidiary in an aggregate amount not to exceed $60,000,000 during the term of this Credit Agreement (commencing on the First Amendment Effective Date), (C) the sale, lease or transfer (including by way of license) of property or assets between Subsidiaries that are not Credit Parties and (D) any conversion of a Restricted Subsidiary from one corporate form to another;
(viii) (A) the sale, lease or transfer (including by way of license) of property or assets not to exceed $60,000,000 in the aggregate in any fiscal year and (B) the sale, lease or transfer (including by way of license) of property or assets not to exceed $50,000,000 during the term of this Credit Agreement (commencing on the First Amendment Effective Date); provided, that the aggregate amount of property or assets sold, leased or transferred (including by way of license) pursuant to the immediately foregoing clauses (A) and (B) shall not exceed $75,000,000 in the aggregate in any fiscal year;
(ix) the liquidation and/or dissolution of any Immaterial Domestic Subsidiary or any Immaterial Foreign Subsidiary; provided that the Credit Parties shall remain in compliance with Section 7.09(b) after giving effect to any such liquidation or dissolution;
(x) Dispositions and Investments permitted under Section 8.05; and
(xi) Dispositions of non-core assets acquired in a Permitted Acquisition; provided that (A) such Dispositions are completed within eighteen (18) months of such Permitted Acquisition and (B) such non-core assets do not exceed twenty-five percent (25%) of the total tangible assets acquired in such Permitted Acquisition. provided, that, in the case of clauses (i), (iii) and (vi) above, at least seventy-five percent (75%) of the consideration received therefor by the Borrower or any such Subsidiary is in the form of cash or Cash Equivalents; or
(b) (i) purchase, lease or otherwise acquire (including by way of license), whether in one a single transaction or a series of related transactions) any part of , the property or assets of any Person (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Personmaterials, except that the following shall be permitted:
(a) Holdings and its Subsidiaries maytools, as lessee property, equipment, software or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising intellectual property in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent including any of the item of equipment so sold foregoing with an Unrestricted Subsidiary (subject to Section 8.06), except as otherwise limited or exchanged;
(fprohibited herein) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent enter into any transaction of merger or consolidation, except, in each case, for the benefit of the Secured Creditors (A) Investments or acquisitions permitted pursuant to Section 8.05, (B) the Security Documents in merger or consolidation of a Credit Party or other Subsidiary with and into another Credit Party (with the assets so transferred shall remain in full force and effect and perfected (to at least Credit Party being the same extent as in effect immediately prior surviving entity; provided, that, if the Borrower is a party to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intotransaction, the Borrower so long as shall be the surviving entity), (iC) the Borrower is the surviving corporation merger or consolidation of an Unrestricted Subsidiary with and into any such merger, dissolution Restricted Subsidiary or liquidation and another Unrestricted Subsidiary or (iiD) the security interests granted to the Collateral Agent for the benefit merger or consolidation of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned a Restricted Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;into another Restricted Subsidiary.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and Each of the Borrower Credit Parties will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, wind up:
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease to a third party 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 or agree to do so at a future time except the following, without duplication, shall be expressly permitted:
(i) Specified Sales;
(ii) Sale Leaseback Transactions to the extent permitted under Section 6.12;
(iii) the disposition of property or assets as a result of a Recovery Event;
(iv) the sale, lease, transfer or other disposition of (A) machinery, parts and equipment no longer used or useful in the conduct of the business of the Borrower or any of its Subsidiaries and (B) property and assets located at or used in connection with, or which are otherwise associated with, restaurants that are not material to the business of any Credit Party;
(v) the sale, lease or transfer of property or assets between Credit Parties, so long as the Liens of the Administrative Agent with respect to such property or assets remain in full force and effect and fully perfected after giving effect to such transaction;
(vi) the dissolution, liquidation or winding up of a Liquor License Subsidiary or any sale, transfer or other disposition of assets from a Liquor License Subsidiary to a Credit Party or another Liquor License Subsidiary;
(vii) the sale, lease or transfer of the properties set forth on Schedule 2.7(b)(ii), and
(viii) the sale, lease or transfer of property or assets not to exceed $2,000,000 in the aggregate in any fiscal year and $10,000,000 in the aggregate during the term of this Agreement; provided, that in each case (other than inventory with respect to clause (v) above and dispositions of assets of a restaurant in connection with a refinishing, refurnishing or upgrade of such restaurant for consideration less than $100,000 in the ordinary course aggregate per restaurant) (A) at least 75% of business, including sales of inventory on consignment the consideration received therefor by any Credit Party or any such Subsidiary shall be in the ordinary course form of business)cash or Cash Equivalents, (B) after giving effect to the sale, lease, transfer or enter into other disposition of such property or assets and the repayment of Indebtedness (if any) with the proceeds thereof, the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.9 hereof and shall be in compliance with all other terms and conditions of this Agreement, and (C) no Event of Default shall exist or shall result from such sale, lease, transfer or other disposition of property or assets; provided, further, that with respect to any partnershipssale or transfer of property or assets permitted hereunder to an unrelated third party, joint ventures the Administrative Agent shall be entitled, without the consent of the Lenders or sale-leaseback transactionsthe Required Lenders, to release its Liens relating to the particular property or purchase assets sold; or
(b) (i) purchase, lease or otherwise acquire (in one a single transaction or a series of related transactions) any part all or substantially all of the property or assets or a majority of the Voting Stock of any Person (other than purchases or other acquisitions of inventory, materials goods, materials, property and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
as otherwise limited or prohibited herein) or (aii) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course any transaction of business with respect to real merger or personal property;
consolidation, except for (bA) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
Permitted Acquisitions, (cB) the advances, investments and loans or acquisitions permitted pursuant to Section 9.05;
6.6, and (dC) Holdings and its Subsidiaries may sell the merger or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of Credit Party with and into another Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is will be the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;corporation.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the The Borrower will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease or otherwise dispose of (its property or assets or agree to do any so at a future time except the following, without duplication, shall be expressly permitted:
(i) Specified Sales;
(ii) the sale, transfer, lease or other disposition of the foregoing at any future time) all or any part of its property or assets (other than inventory A) to an unrelated party not in the ordinary course of businessbusiness (other than Specified Sales), including sales where and to the extent that they are the result of inventory on consignment a Recovery Event or (B) the sale, lease, transfer or other disposition of real property, machinery, parts and equipment no longer used or useful in the ordinary course conduct of business)the business of the Borrower or any of its Subsidiaries, as appropriate, in its reasonable discretion;
(iii) the sale, lease or enter into transfer of property or assets from a Credit Party to another Credit Party;
(iv) the sale of trade receivables sold or otherwise conveyed to or by a Securitization Vehicle; and
(v) the sale, lease or transfer of property or assets not to exceed 10% of Consolidated Total Assets in the aggregate in any partnershipsfiscal year; or
(b) (i) purchase, joint ventures or sale-leaseback transactions, or purchase lease or otherwise acquire (in one a single transaction or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, materials leases, materials, property and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
as otherwise limited or prohibited herein) or (aii) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course any transaction of business with respect to real merger or personal property;
consolidation, except for (bA) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
Investments or acquisitions (cincluding Permitted Acquisitions) the advances, investments and loans permitted pursuant to Section 9.05;
6.5, (dB) Holdings and its Subsidiaries may sell the merger or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of Credit Party with and into another Credit Party, provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is will be the surviving corporation of any such merger, dissolution or liquidation and (iiC) the security interests granted to the Collateral Agent for the benefit merger or consolidation of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned a Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, into another Subsidiary or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted AcquisitionBorrower; provided that (i) Holdings shall have -------- delivered to if a Credit Party is a party thereto, the Administrative Agent, at Credit Party will be the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;surviving corporation.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, wind up:
(a) dissolve, liquidate or dissolve wind up its affairs affairs, sell, transfer, lease or otherwise dispose of any substantial part of its property or assets outside of the ordinary course of business or agree to do so at a future time except the following, without duplication, shall be expressly permitted:
(i) Specified Sales;
(ii) the sale, transfer, lease or other disposition of property or assets not in the ordinary course of business (other than Specified Sales), where and to the extent that such transaction is the result of a Recovery Event and the Net Proceeds therefrom are used to repair or replace damaged property or to purchase or otherwise acquire new assets or property provided that such purchase or acquisition is committed to within 120 days of receipt of the Net Proceeds from the Recovery Event and such purchase or acquisition is consummated within 180 days of such receipt; and
(iii) the sale, lease or transfer of property or assets by a Credit Party other than Borrower to a domestic Credit Party. As used herein, “substantial part” shall mean property and assets, the book value of which, when added to the book value of all other assets sold, leased or otherwise disposed of by the Consolidated Group (other than in the ordinary course of business), shall in any fiscal year exceed 10% of Consolidated Net Worth, in each case determined as of the end of the immediately preceding fiscal year; or
(b) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) all or any substantial part of the property or assets of any Person other than purchases or other acquisitions of inventory, leases, materials, property and equipment in the ordinary course of business, (except as otherwise limited or prohibited herein), or enter into any transaction of merger or consolidation, except for (i) investments 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount7.5, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to merger or consolidation of Borrower with or into another Credit Party, provided that in any such case Borrower shall be the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected surviving entity, (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (iiii) the Borrower is the surviving corporation merger or consolidation of any such merger, dissolution wholly-owned Subsidiary with or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including into any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j)wholly-owned Subsidiary, and (iiiv) Holdings the merger or the consolidation of any wholly-owned Subsidiary with or into Borrower provided that in any such case Borrower shall have given be the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;surviving entity.
Appears in 1 contract
Samples: Credit Agreement (Exx Inc/Nv/)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Company will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease or otherwise dispose of (its property or assets or agree to do any so at a future time except the following, without duplication, shall be expressly permitted:
(i) Specified Sales; and
(ii) the sale, transfer, lease or other disposition of the foregoing at any future time) all or any part of its property or assets (other than inventory a) to an unrelated party not in the ordinary course of businessbusiness (other than Specified Sales), including sales where and to the extent that they are the result of inventory on consignment a Recovery Event or (b) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the ordinary course conduct of business)the business of the Company or any of its Subsidiaries, as appropriate, in its reasonable discretion, so long as and the net proceeds therefrom are used to repair or enter into replace damaged property or to purchase or otherwise acquire new assets or property, provided that such purchase or acquisition is committed to within 90 days of receipt of the net proceeds and such purchase or acquisition is consummated within 120 days of receipt of such proceeds;
(iii) the sale, lease or transfer of property or assets (at fair value) between the Borrowers and any partnershipsGuarantor;
(iv) the sale, joint ventures lease or transfer of property or assets from a Credit Party other than the Borrowers to another Credit Party; and
(v) the sale-leaseback transactions, lease or purchase transfer of property or assets at fair value in an amount not to exceed $1,000,000 in the aggregate in any fiscal year; provided, that in each case at least 75% of the consideration received therefor by the Company or any such Subsidiary is in the form of cash or Cash Equivalents; or
(b) (i) purchase, lease or otherwise acquire (in one a single transaction or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, materials leases, materials, property and equipment in the ordinary course of business) of any Person, except as otherwise limited or prohibited herein) provided that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists shall have occurred and be continuing or would result therefrom (including giving on an actual or pro forma effect to basis, the Company or any other Borrower may acquire all or a majority of the Capital Stock or other ownership interest in any Person (in a similar or related line of business provided that such acquisition and --- ----- any additional Indebtedness resulting therefrom shall not have been rejected initially or incurred thereafter by such Person's board of directors) or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as all or a substantial portion of the first day assets, property and/or operations of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance Person (in reasonable detail as a similar or related line of business) in an aggregate amount for all such acquisitions not to pro forma calculationsexceed $20,000,000 in any fiscal year, or (ii) with all enter into any transaction of the provisions of this paragraph merger or consolidation, except for (j)A) investments or acquisitions permitted pursuant to Section 6.6, and (iiB) Holdings the merger or consolidation of a Credit Party with and into another Credit Party, provided that if the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings Company or any of its Subsidiaries to third Persons not interfering in any material respect with Borrower is a party thereto, the business of Holdings Company or any of its Subsidiaries;such Borrower will be the surviving corporation.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and Each of the Borrower Credit Parties will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease to 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 or agree to do so at a future time except the following, without duplication, shall be expressly permitted:
(i) the sale, transfer, lease or other disposition of inventory and materials in the ordinary course of business;
(ii) the sale, transfer or other disposition of cash and Cash Equivalents;
(A) the disposition of property or assets as a direct result of a Recovery Event or (B) the sale, lease, transfer or other disposition of assets no longer used or useful in the conduct of the business of the Borrower or any of its Subsidiaries;
(iv) the sale, lease or transfer of property or assets from one Credit Party to another Credit Party (other than inventory the Parent) or from one Foreign Subsidiary to another Foreign Subsidiary;
(v) the sale, lease or transfer of Investments made in accordance with clause (xv) of the definition of Permitted Investments;
(vi) the Borrower and its Subsidiaries may enter into leases and licenses in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:Capital Leases permitted hereunder;
(avii) Holdings and its Subsidiaries may, as lessee the sale or lessor, enter into operating leases discount (without recourse) in the ordinary course of business with respect of accounts receivable which are overdue or which are difficult to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discountcollect, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(eviii) Holdings any Subsidiary of the Borrower may be dissolved or liquidated into, or merged or consolidated with, the Borrower or any other Domestic Subsidiary of the Borrower and any Foreign Subsidiary may be dissolved or liquidated into, or merged or consolidated with, another Foreign Subsidiary;
(ix) the Borrower and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as consummate the proceeds of each such sale or exchange is used to acquire (Acquisition and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchangedtransactions related thereto;
(fx) Holdings the cancellation of any promissory notes permitted by clause (xiii) of the definition of Permitted Investments;
(xi) the Credit Parties may terminate any Hedging Agreement permitted pursuant to Section 6.1(e);
(xii) any Equity Issuance and any issuance by any Credit Party or any Subsidiary thereof of shares of Capital Stock or warrants, or similar rights, which are exercisable for or convertible into shares or interests of Capital Stock;
(xiii) the Borrower may sell approximately 6.8 acres of unimproved land at its Subsidiaries mayheadquarters in Dublin, Ohio for a purchase price determined by the Borrower's board of directors in good faith;
(xiv) the Credit Parties may sell the assets or outstanding Capital Stock of Medex de Costa Rica Limitada for fair market value; and
(xv) the sale, lease or transfer of property or assets not to exceed $2,000,000 in the aggregate in any fiscal year; PROVIDED, that, in the case of clauses (i), (ii), (iii)(A), (vii) and (xv) above, at least 75% of the consideration received by the Borrower or any other Credit Party in connection with any sale, lease or transfer involving property or assets with a fair market value in excess of $250,000 is in the form of cash or Cash Equivalents; PROVIDED, FURTHER, that with respect to sales of property or assets permitted hereunder only, the Administrative Agent shall be entitled, without the consent of the Required Lenders, to release its Liens relating to the particular property or assets sold; or
(b) (i) purchase, lease from or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person (other than purchases 92 or other acquisitions of inventory and other assets in the ordinary course of business, license, except as licensor otherwise limited or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings prohibited herein) or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent enter into any transaction of merger or consolidation, except for the benefit of the Secured Creditors (A) investments or acquisitions permitted pursuant to Section 6.5, (B) the Security Documents in merger, dissolution, liquidation or consolidation of a Credit Party (other than the assets so transferred Parent) with and into another Credit Party (other than the Parent); PROVIDED that the surviving entity shall remain in full force be a Credit Party and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of if the Borrower may merge with and into, or be dissolved or liquidated intois a party thereto, the Borrower so long as will be the surviving entity, (iC) Consolidated Capital Expenditures permitted hereunder, (D) the Borrower is Acquisition and the surviving corporation of any such transactions related thereto, (E) the merger, dissolution dissolution, liquidation or liquidation consolidation of a Foreign Subsidiary with or into another Foreign Subsidiary, (F) the purchase, lease or acquisition of property or assets by one Credit Party (other than the Parent) from another Credit Party or by one Foreign Subsidiary from another Foreign Subsidiary and (iiG) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents leases and licenses in the assets ordinary course of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such mergerbusiness, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Capital Leases permitted hereunder.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower will not, and will not permit any of their respective its Subsidiaries to, and will not apply to the Bankruptcy Court for authority 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings the Borrower and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings the Borrower and its Subsidiaries to the extent not in violation of Section 9.078.9 or the Budget then in effect;
(c) the advances, investments and loans permitted pursuant to Section 9.058.6;
(d) Holdings each of the Credit Parties may sell assets pursuant to the Sale Proposal and other assets with the prior written consent of the Required Lenders so long as the Net Cash Proceeds therefrom are applied in accordance with Sections 3.3(d) and 4.2(d);
(e) the Borrower and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(ef) Holdings the Borrower and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds purpose of each such sale or exchange is used to acquire (and results within 180 90 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(fg) Holdings the Borrower and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings the Borrower or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings the Borrower or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(gh) the Borrower and its Domestic Subsidiaries that are Subsidiary Guarantors may sell or otherwise transfer inventory between or among themselves in the ordinary course of business for resale by the Borrower or such Domestic Subsidiaries, as the case may be, so long as the security interest granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Agreement in the inventory so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(i) the Borrower and its Domestic Subsidiaries that are Subsidiary Guarantors may sell or otherwise transfer accounts receivable between or among themselves in the ordinary course of business so long as the security interest granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Agreement in the accounts receivable so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(j) any Wholly Owned Domestic Subsidiary of the Borrower that is a Subsidiary Guarantor may transfer assets (other than accounts receivable and inventory) to the Borrower or to any other Wholly Owned Domestic Subsidiary of the Borrower, Borrower that is a Subsidiary Guarantor so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(hk) any Wholly Owned Domestic Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Domestic Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(il) any Wholly Owned Domestic Subsidiary of the Borrower that is a Subsidiary Guarantor may merge with and into, or be dissolved or liquidated into, any Wholly Wholly-Owned Domestic Subsidiary of the Borrower that is a Subsidiary Guarantor (other than the Receivables Entity) so long as (i) such Wholly Wholly-Owned Domestic Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Domestic Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(km) leases or subleases granted by Holdings the Borrower or any of its Subsidiaries to third Persons in the ordinary course or business and not interfering in any material respect with the business of Holdings the Borrower or any of its Subsidiaries;; and
(n) WR Acquisition may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of WR Acquisition shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation).
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and Each of the Borrower Credit Parties will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, wind up:
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease or otherwise dispose of (its property or assets or agree to do any so at a future time except the following, without duplication, shall be expressly permitted:
(i) the sale, transfer, lease or other disposition of the foregoing at any future time) all or any part of its property or assets (other than inventory and materials in the ordinary course of business;
(ii) the sale, transfer or other disposition of cash and Cash Equivalents;
(A) the disposition of property or assets as a direct result of a Recovery Event or (B) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Borrower or any of its Subsidiaries, so long as the net proceeds therefrom are used to replace such machinery, parts and equipment or to purchase or otherwise acquire new assets or property within 360 days of receipt of the net proceeds;
(iv) the sale, lease or transfer of property or assets (for fair market value) between the Borrower and any Guarantor;
(v) the sale, lease or transfer of property or assets from a Credit Party other than the Borrower to another Credit Party;
(vi) the sale, lease or transfer of property or assets not to exceed $1,000,000 in the aggregate in any fiscal year;
(vii) the dissolution or liquidation of any Subsidiary (other than a Material Domestic Subsidiary) provided the net proceeds, after satisfaction of all liabilities (including a reasonable reserve for contingent liabilities) and the payment of expenses related thereto, from the dissolution or liquidation are distributed to a Credit Party; and
(viii) the sale of RESCO Steel Products; provided the Net Cash Proceeds from such sale that are not applied by the Borrower to finance one or more Permitted Acquisitions within one year from the date of such sale, shall be used to prepay the Loans in accordance with Section 2.7(b). provided, that, in the case of clauses (i), (ii), (iii), (vi) and (viii) above, at least 75% of the consideration (excluding trade-in value) received therefor by the Borrower or any other Credit Party is in the form of cash or Cash Equivalents; provided, further, that with respect to sales of inventory on consignment in assets permitted hereunder only, the ordinary course Administrative Agent shall be entitled, without the consent of business)the Required Lenders, or enter into any partnershipsto release its Liens relating to the particular assets sold; or
(b) (i) purchase, joint ventures or sale-leaseback transactions, or purchase lease or otherwise acquire (in one a single transaction or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, materials leases, materials, property and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
as otherwise limited or prohibited herein) or (aii) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course any transaction of business with respect to real merger or personal property;
consolidation, except for (bA) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans or acquisitions permitted pursuant to Section 9.05;
6.5, (dB) Holdings and its Subsidiaries may sell the merger or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of Credit Party with and into another Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as will be the surviving corporation and (iC) the Borrower merger or consolidation of a Subsidiary with a Credit Party provided the Credit Party is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;entity.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the The Borrower will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease or otherwise dispose of (its property or assets or agree to do any so at a future time except the following, without duplication, shall be expressly permitted:
(i) Specified Sales;
(ii) the sale, transfer, lease or other disposition of the foregoing at any future time) all or any part of its property or assets (other than inventory A) to an unrelated party not in the ordinary course of businessbusiness (other than Specified Sales), including sales where and to the extent that they are the result of inventory on consignment a Recovery Event or (B) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the ordinary course conduct of business)the business of the Borrower or any of its Subsidiaries, as appropriate, in its reasonable discretion, so long as the net proceeds therefrom are used to repair or enter into replace damaged property or to purchase or otherwise acquire new assets or property, provided that such purchase or acquisition is committed to within 180 days of receipt of the net proceeds and such purchase or acquisition is consummated within 270 days of receipt of such proceeds;
(iii) the sale, lease or transfer of property or assets (at fair value) from any partnershipsSubsidiary other than a Material Domestic Subsidiary to the Borrower or another Subsidiary;
(iv) the sale, joint ventures lease or transfer of property or assets (at fair value) between the Borrower and any Guarantor;
(v) the sale-leaseback transactions, lease or purchase transfer of property or assets (at fair value) from a Credit Party other than the Borrower to another Credit Party;
(vi) the dissolution, liquidation or winding up of a Foreign Subsidiary or a Domestic Subsidiary other than a Material Domestic Subsidiary; and
(vii) the sale, lease or transfer of property or assets not to exceed $15,000,000 in the aggregate in any fiscal year.
(b) purchase, lease or otherwise acquire (in one a single transaction or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, materials leases, materials, property and equipment in the ordinary course of business), except as permitted pursuant to Section 6.5(a), and 6.6.
(c) of Notwithstanding the provisions in Section 6.5(a) and 6.5(b), merge with or into any other Person, except that the following shall be permitted:
(ai) Holdings the Borrower may merge with another Person if (A) the Borrower is the corporation surviving such merger and its Subsidiaries may(B) immediately after giving effect to such merger on a Pro Forma Basis, as lessee no Default or lessor, enter into operating leases in the ordinary course Event of business with respect to real or personal propertyDefault shall have occurred and be continuing;
(bii) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advancesany Material Domestic Subsidiary may merge with or into, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discountsell, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise lease or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings transfer all or any substantial part of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to a Material Domestic Subsidiary (determined immediately thereafter) if, in connection with any other Wholly Owned Subsidiary of the Borrower, so long as such merger (iA) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of either the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower such Material Domestic Subsidiary is the surviving corporation of any such merger, dissolution or liquidation and (iiB) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and immediately after giving effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution sale, lease or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and intoother transfer on a Pro Forma Basis, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists shall have occurred and be continuing;
(iii) any Subsidiary other than a Material Domestic Subsidiary may merge with or would result therefrom into, or sell, lease or otherwise transfer all or any substantial part of its assets to the Borrower or another Subsidiary; and
(including giving pro forma effect to such acquisition and --- ----- iv) any additional Indebtedness resulting therefrom or incurred or assumed Material Domestic Subsidiary may merge with another Person in connection therewith as with an Acquisition permitted by Section 6.6 if (A) such acquisition had occurred and such Indebtedness had been incurred as of Material Domestic Subsidiary is the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), surviving corporation and (iiB) Holdings or following such Acquisition, the Borrower shall have given retain, directly or indirectly, a proportionate equity interest in such Material Domestic Subsidiary equal to or greater than the Agents and the Banks at least 30 days Borrower's equity interest immediately prior notice of any Permitted Acquisition (each to such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Acquisition.
Appears in 1 contract
Samples: Credit Agreement (Dimon Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower No Credit Agreement Party will, nor will not, and will not any Credit Agreement Party permit any of their respective its Subsidiaries to, wind up, liquidate or dissolve its 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 time) all or any part of its property or assets (other than inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 materials, general intangibles, equipment, goods and equipment services in the ordinary course of business) of any PersonPerson or agree to do any of the foregoing at any future time, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessorlessee, enter into operating leases in the ordinary course of business with respect to real real, personal, movable or personal immovable property;
(b) Capital Expenditures by Holdings the Borrower and its Subsidiaries to the extent not in violation of Section 9.079.11;
(c) the advances, investments and loans Investments permitted pursuant to Section 9.05;
(d) Holdings 9.05 and its Subsidiaries may sell the disposition or discount, in each case without recourse, accounts receivable arising liquidation of Cash Equivalents in the ordinary course of business;
(d) the Borrower and any of its Subsidiaries may sell or otherwise dispose of assets (excluding capital stock of, but only or other equity interests in, Subsidiaries, Joint Ventures, Unrestricted Subsidiaries and Tractor Trailers) which, in the reasonable opinion of such Person, are obsolete, uneconomic or no longer useful in the conduct of such Person’s business, provided that except with respect to asset dispositions or transfers arising out of, or in connection with, the events described in clauses (i) and (ii) of the definition of Recovery Event, (w) each such sale or disposition shall be for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of Holdings), (x) to the extent that any such sale or disposition generates Net Sale Proceeds equal to or greater than $1,500,000, each such sale or disposition (I) results in consideration at least 75% of which (taking into account the amount of cash, the principal amount of any promissory notes and the fair market value, as determined by Holdings in good faith, of any other consideration) shall be in the form of cash or (II) in the case of an asset or assets subject to Capitalized Lease Obligations or other purchase money obligations, results in the assumption of all of the Capitalized Lease Obligations or other purchase money obligations of the Borrower or such Subsidiary in respect of such asset by the purchaser thereof, (y) the aggregate Net Sale Proceeds from all assets sold or otherwise disposed of pursuant to this clause (d), when added to the aggregate amount of all Capitalized Lease Obligations and all other purchase money obligations assigned in connection with all assets sold or otherwise disposed of pursuant to this clause (d), shall not exceed $8,000,000 in the compromise aggregate in any fiscal year of Holdings and (z) in the case of any sale or collection thereofdisposition of an asset constituting an Asset Sale, the Net Sale Proceeds therefrom are either applied to repay Term Loans (and/or reduce the Total Term Loan Commitment, the Total Revolving Loan Commitment and/or the Total PF Letter of Credit Commitment) as provided in Section 4.02(c) or reinvested in replacement assets or retained to the extent permitted by Section 4.02(c) and/or the other relevant provisions of this Agreement;
(e) Holdings and its Subsidiaries or any Subsidiary of Holdings may sell or exchange specific items of machinery or equipmentconvey, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of businesslease, license, as licensor sell or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings transfer all or any part of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer business, properties and assets to the Borrower or to any other Wholly Owned Subsidiary of the BorrowerGuarantor, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer)) and all actions required to maintain said perfected status have been taken;
(hf) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower or any Subsidiary Guarantor, so long as (i) the Borrower or such Subsidiary Guarantor is the surviving corporation of any such merger, dissolution or liquidation and (ii) the any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation)) and all actions required to maintain said perfected status have been taken;
(ig) any Wholly Owned Foreign Subsidiary of the Borrower Holdings may merge be merged or amalgamated with and into, or be dissolved or liquidated into, or transfer any Wholly of its assets to, any Wholly-Owned Foreign Subsidiary of the Borrower Holdings, so long as (i) such Wholly Wholly-Owned Foreign Subsidiary is a Guarantor and of Holdings is the surviving corporation of any such merger, amalgamation, dissolution or liquidation and (ii) any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the Equity Interests of such Wholly-Owned Foreign Subsidiary and such Foreign Subsidiary shall remain in full force and effect and perfected and enforceable (to at least the same extent as in effect immediately prior to such merger, amalgamation, dissolution, liquidation or transfer) and all actions required to maintain said perfected status have been taken;
(h) the Borrower and its Wholly-Owned Domestic Subsidiaries shall be permitted to make Permitted Acquisitions, so long as such Permitted Acquisitions are effected in accordance with the requirements of Section 8.15;
(i) the Borrower and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons or one another, so long as any such license by the Borrower or any of its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(j) the Borrower and its Domestic Subsidiaries may transfer assets to Wholly-Owned Foreign Subsidiaries, so long as (x) no Default or Event of Default exists as the time of the respective transfer and (y) the aggregate fair market value of all such assets so transferred (determined in good faith by the Board of Directors or senior management of the Borrower) to all such Foreign Subsidiaries on and after the Effective Date does not exceed the sum of (i) $12,000,000 plus (ii) the aggregate fair market value of all assets of Foreign Subsidiaries of the Borrower (as determined in good faith by senior management of the Borrower) transferred by such Foreign Subsidiaries to the Borrower and any Subsidiary Guarantor pursuant to Section 9.02(e) after the Effective Date;
(k) the Borrower and any of its Subsidiaries may sell Tractor Trailers (but not pursuant to Permitted Program Affiliate Transactions) which, in the reasonable opinion of such Person, are, subject to the second succeeding proviso, obsolete, uneconomic or no longer useful in the conduct of such Person’s business or otherwise require upgrading, provided that (i) any such sale shall be for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the Borrower), (ii) such sale (x) results in consideration at least 80% of which (taking into account the amount of cash, the principal amount of any promissory notes and the fair market value, as determined by the Borrower in good faith, of any other consideration) shall be in the form of cash or (y) results in the assumption of all of the Capitalized Lease Obligations of the Borrower or such Subsidiary in respect of such Tractor Trailer by the purchaser thereof, (iii) the Net Sale Proceeds from, or the amount of Capitalized Lease Obligations assigned in connection with, any such sale, when added to the aggregate Net Sale Proceeds received from, and the aggregate amount of all Capitalized Lease Obligations assigned in connection with, all other Tractor Trailers sold pursuant to this clause (k) after the Effective Date, shall not exceed $30,000,000 and (iv) any Net Sale Proceeds from any such sale are applied to repay Term Loans (and/or reduce the Total Term Loan Commitment, the Total Revolving Loan Commitment and/or the Total PF Letter of Credit Commitment) as provided in Section 4.02(c) or reinvested in replacement assets or retained to the extent permitted by Section 4.02(c) and/or the other relevant provisions of this Agreement; provided, however, that with respect to sales of Tractor Trailers generating Net Sale Proceeds, which when aggregated with the aggregate amount of Capitalized Lease Obligations assigned in connection with such sales, do not exceed $10.0 million for all such sales after the Effective Date, such Tractor Trailers shall not be required to be obsolete, uneconomic or no longer useful in the conduct of Holdings or such Subsidiary’s business and shall not be subject to subclause (ii)(x) above, so long as respective sale of Tractor Trailers is to a Program Affiliate and the consideration for such sales consists solely of cash and/or a promissory note pledged to the Collateral Agent pursuant to the U.S. Pledge Agreement;
(l) the Borrower and any of its Subsidiaries may effect Tractor Trailer Replacements, provided that (i) any disposition of a Tractor Trailer pursuant to a Tractor Trailer Replacement shall be for an amount (including any credits towards the purchase of a replacement Tractor Trailer) at least equal to the fair market value thereof (as determined in good faith by senior management of the Borrower) and (ii) the Net Sale Proceeds from any such disposition are applied to repay Term Loans (and/or reduce the Total Term Loan Commitment, the Total Revolving Loan Commitment and/or the Total PF Letter of Credit Commitment) as provided in Section 4.02(c) or reinvested in replacement Tractor Trailers or retained to the extent permitted by Section 4.02(c);
(m) the Borrower and its Subsidiaries may lease, as lessor, or sublease, as sublessor, equipment, machinery or Real Property in the ordinary course of business, so long as (x) such lease is for fair consideration (determined in good faith by the board of directors or senior management of Holdings) and (y) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary so leased shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such mergertransfer) and all actions required to maintain said perfected status have been taken;
(n) the Borrower and any of its Subsidiaries may sell or otherwise dispose of the capital stock of, dissolution or liquidationother Equity Interests in, or all or substantially all of the assets of, any of their respective Subsidiaries, Unrestricted Subsidiaries and Joint Ventures which, in the reasonable opinion of such Person, are uneconomic or no longer useful in the conduct of such Person’s business, provided that (v) in the case of a sale or other disposition of the capital stock or other Equity Interests of any Wholly-Owned Subsidiary of the Borrower, 100% of the capital stock or other Equity Interests of such Subsidiary shall be so sold or disposed of, (w) each such sale or disposition shall be for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the Borrower), (x) each such sale results in consideration at least 75% of which (taking into account the amount of cash, the principal amount of any promissory notes and the fair market value, as determined by the Borrower in good faith, of any other consideration) shall be in the form of cash, (y) the aggregate Net Sale Proceeds of all assets sold or otherwise disposed of pursuant to this clause (n) after the Effective Date shall not exceed $20,000,000 in the aggregate and (z) the Net Sale Proceeds therefrom are either applied to repay Term Loans (and/or reduce the Total Term Loan Commitment, the Total Revolving Loan Commitment and/or the Total PF Letter of Credit Commitment) as provided in Section 4.02(c) or reinvested in replacement assets or retained to the extent permitted by Section 4.02(c) and/or the other relevant provisions of this Agreement;
(o) Holdings and its Subsidiaries may enter into agreements to effect acquisitions and dispositions of stock or assets, so long as the respective transaction is permitted pursuant to the provisions of this Section 9.02; provided that Holdings and its Subsidiaries may enter into agreements to effect acquisitions and dispositions of capital stock or assets in transactions not permitted by the provisions of this Section 9.02 at the time the respective agreement is entered into, so long as in the case of each such agreement, such agreement shall be expressly conditioned upon obtaining the requisite consent of the Required Lenders under this Agreement or the repayment of all Obligations hereunder as a condition precedent to the consummation of the respective transaction and, if for any reason the transaction is not consummated because of a failure to obtain such consent, the aggregate liability of Holdings and its Subsidiaries under any such agreement shall not exceed $5,000,000;
(p) the Borrower and any of its Subsidiaries may effect Permitted Program Affiliate Transactions, so long as the Capitalized Lease Obligations and recourse obligations of the Borrower and its Subsidiaries arising under such Permitted Program Affiliate Transactions are permitted by Section 9.04(l);
(jq) the Borrower and any of its Subsidiaries may (x) purchase fuel, insurance, tires and various other types of equipment and services related to the trucking business on behalf of Program Affiliates and/or (y) purchase fuel, insurance, tires and various other types of equipment and services related to the trucking business and sell or otherwise transfer the same to Program Affiliates, in each case in accordance with the past practices of the Borrower or such Subsidiary, as in effect on the Effective Date, so long as no Default in any such case the Borrower or Event such Subsidiary deducts the amount of Default then exists such purchases from the weekly settlement or would result therefrom (including giving pro forma effect settlements paid to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period Program Affiliate pursuant to its Affiliate Billing Program; and
(including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (ir) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering may effect Permitted Sale-Leaseback Transactions in any material respect accordance with the business definition thereof; provided that (x) the aggregate amount of Holdings all proceeds received by the Borrower and its Subsidiaries from all Permitted Sale-Leaseback Transactions consummated on and after the Effective Date shall not exceed $25,000,000 and (y) the Net Sale Proceeds therefrom are applied to repay Term Loans and/or reduce the Total Term Loan Commitment, Total Revolving Loan Commitment and/or the Total PF Letter of Credit Commitment as provided in Section 4.02(c) or reinvested in replacement assets or retained to the extent permitted by Section 4.02(c). To the extent the Required Lenders waive the provisions of this Section 9.02 with respect to the sale or other disposition of any Collateral, or any Collateral is sold or otherwise disposed of its Subsidiaries;as permitted by this Section 9.02, such Collateral (unless transferred to the Borrower or a Subsidiary thereof) shall (except as otherwise provided above) be sold or otherwise disposed of free and clear of the Liens created by the Security Documents and the Administrative Agent shall take such actions (including, without limitation, directing the Collateral Agent to take such actions) as are appropriate in connection therewith.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the The Borrower ------------------------------------------------------ will not, and nor will not it permit any of their respective its Consolidated Subsidiaries to, wind up:
(a) dissolve, liquidate or dissolve wind up their affairs, other than (i) the dissolution, liquidation or winding up of the affairs of a Consolidated Subsidiary in connection with a disposition of Property permitted by the terms of Section 8.3(c) and (ii) any other dissolution, liquidation or winding up of the affairs of a Consolidated Subsidiary determined to be in the best interests of the Borrower and its affairs Subsidiaries by the Borrower's Board of Directors, provided that (A) if such dissolution, liquidation or -------- winding up involves a Consolidated Subsidiary in which the Book Value exceeds $10,000,000, the Borrower shall have first delivered to the Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect to such dissolution, liquidation or winding up on a Pro Forma Basis, no Default or Event of Default would exist as a result of a violation of Section 7.10(a) or Section 7.10(c), and (B) either (1) the Book Value of all Consolidated Subsidiaries dissolved, liquidated or wound up pursuant to this clause (ii), together with the Book Value of all Property disposed of in all sales, leases, transfers or other dispositions pursuant to Section 8.3(c)(vii) for the period from the Closing Date through and including the date of such proposed dissolution, liquidation or winding up, does not exceed 30% of the Book Value of the Consolidated Subsidiaries as of the most recent Calculation Date preceding such sale, lease, transfer or other disposition with respect to which the Agent shall have received the Required Financial Information or (2) the Borrower shall give notice to the Agent specifying the anticipated or actual date of such dissolution, liquidation or winding up, briefly describing the Consolidated Subsidiary dissolved, liquidated or wound up, or to be dissolved, liquidated or wound up, and setting forth the Book Value of such Consolidated Subsidiary and the aggregate proceeds to be generated by such dissolution, liquidation or winding up and the Net Proceeds to be received by the Borrower and/or any of the Consolidated Subsidiaries in connection with such dissolution, liquidation or winding up and thereafter the Borrower shall (x) within the period of twelve months following the receipt by the Borrower or any Consolidated Subsidiary of any Net Proceeds of such dissolution, liquidation or winding up (with respect to any such dissolution, liquidation or winding up, the "Application ----------- Period"), (I) make an Investment (or cause its applicable Consolidated ------ Subsidiary to make an Investment) in the Borrower or any of the Consolidated Subsidiaries (including Investments and acquisitions which result in a Person becoming a Consolidated Subsidiary) or (II) apply (or cause its applicable Consolidated Subsidiary to apply) to the purchase, acquisition or construction of other Property (including purchases and acquisitions which result in a Person becoming a Consolidated Subsidiary) in an amount, in the case of either of clause (I) or (II) above, equal to the Net Proceeds of such dissolution, liquidation or winding up which, together with the Net Proceeds of all other dissolutions, liquidations or windings up pursuant to this clause (ii) for the period from the Closing Date through and including the date of such proposed dissolution, liquidation or winding up and the Net Proceeds of all sales, leases, transfers or other dispositions pursuant to Section 8.3(c)(vii) for the period from the Closing Date through and including the date of such proposed dissolution, liquidation or winding up, exceed 30% of the Book Value of the Consolidated Subsidiaries as of the most recent Calculation Date preceding such dissolution, liquidation or winding up with respect to which the Agent shall have received the Required Financial Information or (y) prepay the Loans in connection with such dissolution, liquidation or winding up to the extent required by Section 3.3(b) (upon giving effect to the terms of Section 3.4(b) in respect of such dissolution, liquidation or winding up); or
(b) enter into any transaction of merger or consolidation; provided, or convey-------- however, sellthat, 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists would be directly ------- or would indirectly caused as a result therefrom thereof, (i) the Borrower may merge or consolidate with any of its Consolidated Subsidiaries provided that the Borrower is the surviving corporation; (ii) any Material Domestic Subsidiary may merge or consolidate with any other Consolidated Subsidiary provided that such Material Domestic Subsidiary is the surviving corporation; (iii) any Domestic Consolidated Subsidiary may merge or consolidate with any Person that is not a Domestic Consolidated Subsidiary provided that such Domestic Consolidated Subsidiary is the surviving corporation; (iv) any Foreign Consolidated Subsidiary which is a Guarantor may merge or consolidate with any other Foreign Consolidated Subsidiary provided that the Foreign Consolidated Subsidiary which is a Guarantor is the surviving corporation; (v) any Foreign Consolidated Subsidiary which is a Material Foreign Subsidiary which is not a Guarantor may merge with or consolidate with any other Foreign Consolidated Subsidiary which is not a Guarantor provided that the Material Foreign Subsidiary is the surviving corporation; (vi) any Foreign Consolidated Subsidiary which is not a Guarantor or a Material Foreign Subsidiary may merge with any other Foreign Consolidated Subsidiary which is not a Guarantor or a Material Foreign Subsidiary; (vii) the Borrower or any Consolidated Subsidiary may merge or consolidate with any other Person (other than the Borrower or a Consolidated Subsidiary) in a transaction otherwise permitted under the terms of Section 8.3(d) provided that the Borrower or such Consolidated Subsidiary, as the case may be, is the surviving corporation; and (viii) any Consolidated Subsidiary may merge or consolidate with any other Person (other than the Borrower or a Consolidated Subsidiary) in a transaction otherwise permitted under the terms of Section 8.3(d) and in which such other Person is the surviving corporation provided that, if the Consolidated Subsidiary merging into or -------- consolidated with such surviving corporation is a Guarantor, the Borrower shall, concurrently with the consummation of such merger or consolidation, cause such surviving corporation to become a Guarantor and otherwise comply with the requirements of Section 7.11 with respect to such surviving corporation;
(c) sell, lease (as lessor), transfer or otherwise dispose of any Property (including without limitation pursuant to any sale and leaseback transaction other than as permitted by Section 8.10) other than from time to time (i) the sale of inventory in the ordinary course of business (ii) the sale or disposition of machinery and equipment, or other Property having a Book Value not in excess of $5,000,000 in the aggregate for all such sales and dispositions of such other Property in a single transaction or series of related transactions, no longer used or useful in the conduct of such Person's business, (iii) the sale, lease, transfer or other disposition of all or any part of any Unconsolidated Subsidiary or any other asset or Investment of the Borrower or any Consolidated Subsidiary which is not, in accordance with GAAP, shown as an asset or Investment, as applicable, on a consolidated balance sheet of the Borrower and its Consolidated Subsidiaries, (iv) the sale on or before the first anniversary of the Closing Date of all of the stock or all or substantially all of the assets of X.X. Xxxxxxxx & Son, Inc. and/or Consolidated Group, Inc. (and of Subsidiaries thereof), (v) Equity Transactions, (vi) to the Borrower, to any Domestic Consolidated Subsidiary or to any Foreign Consolidated Subsidiary which is a Guarantor and (vii) subject to the terms of Section 8.7 and Section 8.10, other sales, leases (as lessor), transfers or other dispositions of Property (including stock or other ownership interest of any of the Consolidated Subsidiaries held by the Borrower or another Consolidated Subsidiary), provided that (A) if such sale, lease, transfer -------- or other disposition involves a disposition of Property with respect to which the Book Value of such Property exceeds $10,000,000, the Borrower shall have first delivered to the Agent a Pro Forma Compliance Certificate demonstrating that, upon giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom sale, lease, transfer or incurred other disposition on a Pro Forma Basis, no Default or assumed in connection therewith Event of Default would exist as if such acquisition had occurred and such Indebtedness had been incurred as a result of the first day a violation of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during Section 7.10(a) or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (jSection 7.10(c), and (iiB) Holdings either (1) the Book Value of all Property disposed of in all sales, leases, transfers or other dispositions pursuant to this clause (vii) for the period from the -77- Closing Date through and including the date of such proposed sale, lease, transfer or other disposition, together with the Book Value of all Consolidated Subsidiaries dissolved, liquidated or wound up pursuant to Section 8.3(a)(ii), does not exceed 30% of the Book Value of the Consolidated Subsidiaries as of the most recent Calculation Date preceding such sale, lease, transfer or other disposition with respect to which the Agent shall have received the Required Financial Information or (2) the Borrower shall have given give notice to the Agents Agent specifying the anticipated or actual date of such sale, lease, transfer or other disposition, briefly describing the Property sold, leased, transferred or other disposed, or to be sold, leased, transferred or other disposed, and setting forth the amount of the Book Value of such Property and the Banks at least 30 days prior notice aggregate consideration and the Net Proceeds to be received by the Borrower and/or any of the Consolidated Subsidiaries in connection with such sale, lease, transfer or other disposition and thereafter the Borrower shall (x) within the period of twelve months following the receipt by the Borrower or any Consolidated Subsidiary of any Permitted Acquisition Net Proceeds of such sale, lease, transfer or other disposition (each with respect to any such notice a sale, lease, transfer or other disposition, the "Permitted Acquisition NoticeApplication Period"); -----------------------------
, either (kI) leases make an Investment (or subleases granted by Holdings ------------------ cause its applicable Consolidated Subsidiary to make an Investment) in the Borrower or any of the Consolidated Subsidiaries (including Investments and acquisitions which result in a Person becoming a Consolidated Subsidiary) or (II) apply (or cause its Subsidiaries applicable Consolidated Subsidiary to third Persons not interfering apply) to the purchase, acquisition or construction of other Property (including purchases and acquisitions which result in any material respect a Person becoming a Consolidated Subsidiary) in an amount, in the case of either of clause (I) or (II) above, equal to the Net Proceeds of such sale, lease, transfer or other disposition which, together with the business Net Proceeds of Holdings all other sales, leases, transfers or other dispositions pursuant to this clause (vii) for the period from the Closing Date through and including the date of such proposed sale, lease, transfer or other disposition and the Net Proceeds received by the Borrower and/or any of the Consolidated Subsidiaries in connection with a dissolution, liquidation or winding up of the affairs of a Consolidated Subsidiary pursuant to Section 8.3(a)(ii), exceed 30% of the Book Value of the Consolidated Subsidiaries as of the most recent Calculation Date preceding such sale, lease, transfer or other disposition with respect to which the Agent shall have received the Required Financial Information or (y) prepay the Loans in connection with such sale, lease, transfer or other disposition to the extent required by Section 3.3(b) (upon giving effect to the terms of Section 3.4(b) in respect of such sale, lease, transfer or other disposition); or
(d) except as otherwise permitted by Section 8.3(a) or Section 8.3(b) and Section 8.4, and subject to Section 8.7 and Section 8.13, acquire all or any portion of its Subsidiaries;the capital stock or securities of any other Person or purchase, lease (as lessee) or otherwise acquire (in a single transaction or a series of related transactions) all or any substantial part of the Property of any other Person; provided that, subject to the terms of -------- Section 8.4, the Borrower or any Consolidated Subsidiary shall be permitted to make purchases, leases (as lessee), and other acquisitions of the type referred to in this Section 8.3(d) so long as the Acquisition Conditions, if applicable, are satisfied.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Parent will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to,
(a) except as provided in Section 6.4(d) below, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidationconsolidation or amalgamation, or conveyliquidate, sell, lease wind up or otherwise dispose of dissolve itself (or agree to do suffer any of the foregoing at liquidation or dissolution);
(b) acquire any future time) all or any part of its property business or assets from, or Capital Stock of, or be a party to any acquisition of, any Person except:
(i) for purchases of inventory and other than inventory assets to be sold or used in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:; and
(aii) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Investments permitted under Section 9.076.5 hereof;
(c) the advancesconvey, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell sell, lease, transfer or discountotherwise dispose of, in each case one transaction or a series of transactions, any part of its business or assets, whether now owned or hereafter acquired (including, without recourselimitation, accounts receivable arising in the ordinary course of businessreceivables and leasehold interests), but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);excluding:
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and Excluded Disposition;
(ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents obsolete or worn-out Property, tools or equipment no longer used or useful in the assets of such Wholly Owned Subsidiary shall remain its business (other than any Excluded Disposition) or real Property no longer used or useful in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation)its business;
(jiii) any sale, lease or transfer of assets from a Credit Party to another Credit Party; and
(iv) other assets provided that the aggregate current market value of all assets so sold or transferred (in each case determined at the time of such sale or transfer) shall not at any time exceed, when added to the assets sold or transferred pursuant to Section 6.12 hereof, 10% of the current market value of the total assets of the Parent and its Subsidiaries and immediately after giving effect to such transaction, the Parent and its Subsidiaries shall be in compliance with the financial covenants set forth in Section 5.9 hereof on a Pro Forma Basis and both before and after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing; provided, that in each case with respect to subsection (iv) above at least 85% of the consideration received therefor by the Parent or any such Subsidiary is in the form of cash or Cash Equivalents; and
(d) Notwithstanding the foregoing provisions of this Section 6.4, so long as no Default or Event of Default then exists shall have occurred and be continuing, and after giving effect to any of the succeeding transactions, no Default or Event of Default would result therefrom exist hereunder:
(including i) (A) any Credit Party may be merged or consolidated with or into another Credit Party; provided, that, subject to clause (D) immediately below, if one of the parties to such merger or consolidation is the Borrower, the Borrower shall be the continuing or surviving corporation, (B) any Subsidiary may be merged or consolidated with or into another Credit Party so long as the surviving party is either (x) a Credit Party or (y) an Additional Credit Party; provided, that, subject to clause (D) immediately below, if one of the parties to such merger or consolidation is the Borrower, the Borrower shall be the continuing or surviving corporation, (C) any of the Parent or any Subsidiary may merge or consolidate with or into any Person that is not a Credit Party, provided that the applicable conditions set forth in Section 6.4(b) regarding acquisitions are complied with in connection with any such acquisition by merger, the Parent or any such Subsidiary shall be the continuing or surviving corporation and immediately after giving pro forma effect to such acquisition transaction, the Parent and --- ----- its Subsidiaries shall be in compliance with the financial covenants set forth in Section 5.9 hereof on a Pro Forma Basis and (D) the Borrower may merge or consolidate with or into any additional Indebtedness resulting therefrom Credit Party or incurred with any Person wholly-owned and controlled by a Credit Party, provided that if the Borrower is not the continuing or surviving entity, the surviving entity shall have assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as all obligations of the first day Borrower under the Credit Documents and immediately after giving effect to such transaction, the Parent and its Subsidiaries shall be in compliance with the financial covenants set forth in Section 5.9 hereof on a Pro Forma Basis and the ownership of the most recently completed Test Period (including any other Permitted Acquisition that occurred, properties and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery assets of the Permitted Acquisition Notice, Credit Parties as a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and whole shall remain unchanged; and
(ii) Holdings any Subsidiary of the Parent (other than, if the Parent is no longer the Borrower, the Borrower) may sell, lease, transfer or the otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to any Credit Party. The Borrower shall have given provide the Agents and the Banks at least 30 days Administrative Agent with prior written notice of any Permitted Acquisition (each transaction described in this Section 6.4(d) and take such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any other action as may be required pursuant to the terms of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Section 5.12.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Company will not, and will not permit any of their respective 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 (including without limitation capital stock of any Subsidiary of the Company) (other than inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings the Company and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings the Company and its Subsidiaries to the extent not in violation of Section 9.078.08;
(c) the advances, investments and loans Investments permitted pursuant to Section 9.058.05;
(d) Holdings the Company and its Subsidiaries may sell assets no longer used in the business other than Mortgaged Real Property; provided that the aggregate sale proceeds from all assets subject to such sales pursuant to this clause (d) shall not exceed $25,000,000 in any consecutive twelve month period of the Company (exclusive of sale proceeds in respect of obsolete, outmoded or worn-out machinery, equipment, furniture or fixtures) and each such asset sale subject to this clause (d) is for at least 85% cash and at fair market value (as determined in good faith by the Company);
(e) the Company and its Subsidiaries may sell or discount, in each case discount (x) without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereofthereof or (y) accounts receivable pursuant to the Receivables Financing Agreement;
(ef) Holdings without limitation to clause (d), the Company and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used (or contractually committed to be used) to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchangedequipment;
(fg) Holdings the Company and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings the Company or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings the Company or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(gh) the assets of any Wholly Owned Non-U.S. Subsidiary of the Borrower Company may be transferred to the Company or any of its Subsidiaries, and any Non-U.S. Subsidiary of the Company may be merged with and into, or be dissolved or liquidated into, the Company or any of its Subsidiaries so long as the Company or such Subsidiary is the surviving corporation of any such merger, dissolution or liquidation and, except in the case of a transfer by the Israeli Subsidiaries, the security interests, if any, granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(i) any Domestic Subsidiary of the Company may transfer assets to the Borrower Company or to any other Wholly Owned Domestic Subsidiary of the BorrowerCompany (other than a Receivables Subsidiary), so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(hj) any Wholly Owned Domestic Subsidiary of the Borrower Company may merge with and into, or be dissolved or liquidated into, the Borrower Company so long as (i) the Borrower Company is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Domestic Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(ik) any Wholly Owned Domestic Subsidiary of the Borrower Company may merge with and into, or be dissolved or liquidated into, any Wholly Owned Domestic Subsidiary of the Borrower Company so long as (i) such Wholly Owned Domestic Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Domestic Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(jl) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of the Company and its Wholly Wholly-Owned Subsidiaries may consummate acquire assets or the capital stock of any Person (any such acquisition permitted by this clause (l), a "Permitted Acquisition"); provided that (i) Holdings such Person (or the assets so acquired) was, immediately prior to such acquisition, engaged (or used) primarily in the business permitted pursuant to Section 8.01, (ii) if such acquisition is structured as a stock or other equity acquisition, then either (A) the Person so acquired becomes a Wholly-Owned Subsidiary of the Company and, subject to Section 8.14, a Guarantor or (B) such Person is merged with and into the Company or a Wholly-Owned Subsidiary of the Company that is a Guarantor (with the Company or such Wholly-Owned Subsidi- ary being the surviving corporation of such merger), and in any case, all of the provisions of Section 8.14 have been complied with in respect of such Person, (iii) any Liens or Indebtedness assumed or issued in connection with such acquisition is otherwise permitted under Section 8.03 or 8.04, as the case may be, and (iv) after giving effect thereto, the Unutilized Revolving Loan Commitment would be at least $55,000,000; provided, further, that any such Permitted Acquisition (or series of related Permitted Acquisitions) involving total consideration (including, without limitation, any earn-out, non-compete or deferred compensation arrangements and the value of any Company securities, but not including any Indebtedness assumed that complies with Section 8.04(m)) by the Company and its Wholly-Owned Subsidiaries in excess of the Total Consideration Amount shall not be consummated without the prior written consent of the Required Lenders; and provided, further, that the Company shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, Agent a certificate of the Chief Financial Officer of Holdings the Company showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (jl), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------;
(km) leases or subleases granted by Holdings the Company or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings the Company or any of its Subsidiaries;
(n) the Company and its Subsidiaries may, in the ordinary course of business, sell, transfer or otherwise dispose of patents, trademarks, copyrights and know-how which, in the reasonable judgment of the Company or such Subsidiary, are determined to be uneconomical, negligible or obsolete in the conduct of business;
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings Each of the Credit Parties (other than the Parent with respect to subclauses (a) and the Borrower (b)(i) below) will not, and nor will not the Borrower or any Subsidiary Guarantor permit any of their respective Subsidiaries Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease or otherwise dispose of (its property or assets or agree to do any so at a future time except the following, without duplication, shall be expressly permitted:
(i) the sale, transfer, lease or other disposition of the foregoing at any future time) all or any part of its property or assets (other than inventory and materials in the ordinary course of business;
(ii) the sale, including transfer or other disposition of cash and Cash Equivalents;
(A) the disposition of property or assets as a direct result of a Recovery Event or (B) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Borrower or any of its Subsidiaries, so long as the net proceeds therefrom are used to replace such machinery, parts and equipment or to purchase or otherwise acquire new assets or property within 180 days of receipt of the net proceeds;
(iv) the sale, lease or transfer of property or assets between or among the Borrower and the Subsidiary Guarantors;
(v) the termination of any Hedging Agreement permitted pursuant to Section 6.1(e);
(vi) the sale, lease or transfer of property or assets not to exceed $1,000,000 in the aggregate in any fiscal year; and
(vii) liquidate or dissolve any Subsidiary that has no assets or that has sold, disposed of or otherwise transferred all of its assets to the Borrower or a Subsidiary Guarantor; provided, that, in the case of clauses (i), (ii), (iii) and (vi) above, at least 75% of the consideration received therefore by the Borrower or any other Credit Party is in the form of cash or Cash Equivalents; provided, further, that with respect to sales of inventory on consignment in assets permitted hereunder only, the ordinary course Administrative Agent shall without the consent of business)the Required Lenders, or enter into any partnershipsrelease its Liens relating to the particular assets sold; or
(i) purchase, joint ventures or sale-leaseback transactions, or purchase lease or otherwise acquire (in one a single transaction or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, materials leases, materials, property and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
as otherwise limited or prohibited herein) or (aii) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in any transaction of merger or consolidation, except for (A) consummation of the ordinary course of business with respect to real Acquisition, (B) investments or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans acquisitions permitted pursuant to Section 9.05;6.5, and (C) the merger or consolidation of a Credit Party (other than the Parent) with and into another Credit Party (other than the Parent); provided that
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i1) if the transferee Borrower is a Subsidiaryparty thereto, such Subsidiary is a Guarantor the Borrower will be the surviving corporation and (ii2) the security interests granted Administrative Agent's Liens with respect to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents each Credit Party involved in the assets so transferred such merger or consolidation shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;continuously perfected.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and Each of the Borrower Credit Parties will not, and nor will not it permit any of their respective its Restricted Subsidiaries to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, 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 except the following, without duplication, shall be expressly permitted:
(i) the sale, transfer (including by way of license), lease or other than inventory disposition of inventory, materials, tools, property, equipment, software and intellectual property, whether now owned or hereafter acquired, in the ordinary course of business, including sales any of inventory on consignment the foregoing with an Unrestricted Subsidiary (subject to Section 8.06);
(ii) the sale, lease, transfer or other disposition of obsolete or worn-out property or assets, whether now owned or hereafter acquired, in the ordinary course of business;
(iii) the sale, transfer or other disposition of cash and Cash Equivalents for fair market value;
(iv) Dispositions of accounts receivable in connection with the collection or compromise thereof in the ordinary course of business;
(v) licenses, sublicenses, leases or subleases granted to others not interfering in any material respect with the business of the Borrower and its Subsidiaries;
(vi) the disposition of property or assets as a direct result of a Recovery Event;
(A) the sale, lease or transfer (including by way of license) of property or assets between Credit Parties, (B) the sale, lease or transfer (including by way of license) of other property or assets between (1) any Credit Party and any Restricted Subsidiary in an aggregate amount not to exceed $25,000,000 during the term of this Credit Agreement and (2) subject to Section 8.06, any Credit Party or any Restricted Subsidiary and any Unrestricted Subsidiary in an aggregate amount not to exceed $25,000,000 during the term of this Credit Agreement, (C) the sale, lease or transfer (including by way of license) of property or assets between Subsidiaries that are not Credit Parties;
(viii) (A) the sale, lease or transfer (including by way of license) of property or assets not to exceed $50,000,000 in the aggregate in any fiscal year and (B) the sale lease or transfer (including by way of license) of property or assets not to exceed $35,000,000 during the term of this Credit Agreement; provided, that the aggregate amount of property or assets sold, leased or transferred (including by way of license) pursuant to the immediately foregoing clauses (A) and (B) shall not exceed $60,000,000 in the aggregate in any fiscal year;
(ix) the liquidation and/or dissolution of any Immaterial Domestic Subsidiary or any Immaterial Foreign Subsidiary; provided that the Credit Parties shall remain in compliance with Section 7.09(b) after giving effect to any such liquidation or dissolution; and
(x) Dispositions and Investments permitted under Section 8.05. provided, that, in the case of clauses (i), (iii) and (vi) above, at least seventy-five percent (75%) of the consideration received therefor by the Borrower or enter into any partnershipssuch Subsidiary is in the form of cash or Cash Equivalents; or
(b) (i) purchase, joint ventures or sale-leaseback transactions, or purchase lease or otherwise acquire (including by way of license), whether in one a single transaction or a series of related transactions) any part of , the property or assets of any Person (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Personmaterials, except that the following shall be permitted:
(a) Holdings and its Subsidiaries maytools, as lessee property, equipment, software or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising intellectual property in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent including any of the item of equipment so sold foregoing with an Unrestricted Subsidiary (subject to Section 8.06), except as otherwise limited or exchanged;
(fprohibited herein) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent enter into any transaction of merger or consolidation, except, in each case, for the benefit of the Secured Creditors (A) Investments or acquisitions permitted pursuant to Section 8.05, (B) the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned merger or consolidation of a Credit Party or other Subsidiary of the Borrower may merge with and intointo another Credit Party (with the Credit Party being the surviving entity), or be dissolved or liquidated into, the Borrower so long as (iC) the Borrower is the surviving corporation merger or consolidation of an Unrestricted Subsidiary with and into any such merger, dissolution Restricted Subsidiary or liquidation and another Unrestricted Subsidiary or (iiD) the security interests granted to the Collateral Agent for the benefit merger or consolidation of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned a Restricted Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;into another Restricted Subsidiary.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the The Borrower will not, and nor will not it permit any of their respective Subsidiaries Restricted Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any substantial part of its property or assets (other than inventory in outside of the ordinary course of businessbusiness or agree to do so at a future time except the following, including sales of inventory on consignment in the ordinary course of business)without duplication, or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be expressly permitted:
(ai) Holdings and its Subsidiaries maySpecified Sales;
(ii) the sale, as lessee transfer, lease or lessor, enter into operating leases other disposition of property or assets not in the ordinary course of business with respect (other than Specified Sales), where and to real the extent that they are the result of a Recovery Event or personal otherwise and the net proceeds therefrom are used to repair or replace damaged property or to purchase or otherwise acquire new assets or property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(ciii) the advancessale, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell transfer, lease or discount, in each case without recourse, accounts receivable arising in the ordinary course other disposition of business, but only in connection with the compromise property or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or any Restricted Subsidiary; provided, however, the sum of (A) the aggregate amount of such sales, transfers, leases or other dispositions to any other Wholly Owned Subsidiary Non-Guarantor Restricted Subsidiaries plus (B) the aggregate outstanding amount of Indebtedness incurred by Non-Guarantor Restricted Subsidiaries pursuant to Section 6.1(c) plus (C) the aggregate amount of equity investments made in Non-Guarantor Restricted Subsidiaries pursuant to subsection (iii) of the Borrower, so long as definition of "Permitted Investments" shall not exceed $5,000,000 at any time; and
(iiv) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and sales of Unrestricted Margin Stock for fair market value in cash (ii) the security interests granted provided that notwithstanding anything contained herein to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intocontrary, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets proceeds of such Wholly Owned Subsidiary shall remain sales may only be invested in full force cash and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidationCash Equivalents);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as . Provided no Default or Event of Default then exists exists, the Administrative Agent shall, without obtaining the consent of any Lender, release its lien on any collateral sold or would result therefrom (including giving pro forma effect to otherwise transferred in accordance with this Section upon the consummation of such acquisition sale or transfer and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as upon the performance by the Borrower of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any all of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time obligations hereunder on account of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings such sale or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;transfer.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the The ------------------------------------------------------- Borrower will not, and will not permit any of their respective its Subsidiaries to, wind up, liquidate or dissolve dis solve 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or sale-leaseback transactions, or purchase pur chase or otherwise acquire (in one or a series of related transactions) any part of the property prop erty or assets (other than purchases or other acquisitions of inventory, materials materials, general intangibles and equipment in the ordinary course of business) of any PersonPerson or agree to do any of the foregoing at any future time, except that the following shall be permitted:
(a) Holdings the Borrower and its Subsidiaries may, as lessee or lessorlessee, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures (including payments in respect of Capitalized Lease Obligations entered into after the Initial Borrowing Date, but excluding Capital Expenditures which may arise as a result of the purchase of any capital stock or equity interests in any other Person or by Holdings means of a purchase of assets constituting a business, division or product line of any Person, which expenditures may only be made pursuant to Permitted Acquisitions effected in accordance with the relevant provisions of this Agreement) by the Borrower and its Subsidiaries to the extent shall be permitted so long as same do not in cause a violation of Section 9.07any of the other provisions of this Agreement;
(c) the advances, investments and loans Investments permitted pursuant to Section 9.05;
(d) Holdings 9.05 and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising the liquidation of Cash Equivalents in the ordinary course of business;
(d) the Borrower and any of its Subsidiaries may sell or otherwise dispose of assets (excluding capital stock of, but only or other equity interests in, Subsidiaries and Healthcare Units) which, in the reasonable opinion of such Person, are obsolete, uneconomic or no longer useful in the conduct of such Person's business, provided that except with respect to asset -------- dispositions or transfers arising out of, or in connection with, the events described in clauses (i) and (ii) of the definition of Recovery Event, (w) each such sale or disposition shall be for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the Borrower), (x) each such sale or disposition (I) results in consideration at least 80% of which (taking the amount of cash, the principal amount of any promissory notes and the fair market value, as determined by the Borrower in good faith, of any other consideration) shall be in the form of cash or (II) results in the assumption of all of the Capitalized Lease Obligations of the Borrower or such Subsidiary in respect of such asset by the purchaser thereof, (y) the aggregate Net Sale Proceeds from all assets sold or otherwise disposed of pursuant to this clause (d), when added to the aggregate amount of all Capitalized Lease Obligations assigned in connection with all assets sold or otherwise disposed of pursuant to this clause (d), shall not exceed $2,500,000 in the compromise aggregate in any fiscal year of the Borrower and (z) the Net Sale Proceeds therefrom are either applied to repay Term Loans (or collection thereofreduce the Total Revolving Loan Commitment) as provided in Section 4.02(c) or reinvested in replacement assets or retained to the extent permitted by Section 4.02(c) and/or the other relevant provisions of this Agreement;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Wholly-Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(hf) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower Borrower, so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(ig) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Wholly-Owned Domestic Subsidiary of the Borrower Borrower, so long as (i) such Wholly Wholly-Owned Domestic Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately immedi ately prior to such merger, dissolution or liquidation);
(jh) the Borrower shall be permitted to make Permitted Acquisitions, so long as no Default such Permitted Acquisitions are effected in accordance with the requirements of Section 8.14;
(i) the Recapitalization shall be permitted in accordance with the requirements of this Agreement;
(j) the Borrower and its Subsidiaries may, in the ordinary course of business, license patents, trademarks, copyrights and know-how to or Event from third Persons or one another, so long as each such license is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of a Lien by the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings Borrower or any of its Wholly Owned Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(k) the Borrower or any of its Subsidiaries may consummate a effect Permitted AcquisitionSale-Leaseback Transactions in accordance with the definition thereof; provided that the aggregate amount of all proceeds received by the Borrower -------- and its Subsidiaries from all Permitted Sale-Leaseback Transactions consummated on and after the Effective Date shall not exceed $15,000,000;
(l) the Borrower and any of its Subsidiaries may sell Healthcare Units which, in the reasonable opinion of such Person, are obsolete, uneconomic or no longer useful in the conduct of such Person's business or otherwise require upgrading, provided that (i) Holdings any such sale shall have be for -------- delivered an amount at least equal to the Administrative Agent, at the time of delivery fair market value thereof (as determined in good faith by senior management of the Permitted Acquisition NoticeBorrower), a certificate (ii) such sale (x) results in consideration at least 80% of which (taking the amount of cash, the principal amount of any promissory notes and the fair market value, as determined by the Borrower in good faith, of any other consideration) shall be in the form of cash or (y) results in the assumption of all of the Chief Financial Officer Capitalized Lease Obligations of Holdings showing compliance the Borrower or such Subsidiary in respect of such Healthcare Unit by the purchaser thereof, (iii) the Net Sale Proceeds from, or the amount of Capitalized Lease Obligations assigned in connection with, any such sale, when added to the aggregate Net Sale Proceeds received from, and the aggregate amount of all Capitalized Lease Obligations assigned in connection with, all other Healthcare Units sold pursuant to this clause (l) after the Effective Date, shall not exceed $25,000,000 and (iv) any Net Sale Proceeds from any such sale are applied to repay Term Loans (or reduce the Total Revolving Loan Commitment) as provided in Section 4.02(c) or reinvested in replacement assets or retained to the extent permitted by Section 4.02(c) and/or the other relevant provisions of this Agreement;
(m) the Borrower and any of its Subsidiaries may effect Healthcare Unit Replacements, provided that (i) any disposition of a Healthcare Unit -------- pursuant to a Healthcare Unit Replacement shall be for an amount (including any credits towards the purchase of a replacement mobile Healthcare Unit) at least equal to the fair market value thereof (as determined in good faith by senior management of the Borrower) and (ii) the Net Sale Proceeds from any such disposition are applied to repay Term Loans (or reduce the Total Revolving Loan Commitment) as provided in Section 4.02(c) or reinvested in replacement Healthcare Units or retained to the extent permitted by Section 4.02(c); and
(n) the Borrower and any of its Subsidiaries may sell or otherwise dispose of the capital stock of, or other equity interests in, any of their respective Subsidiaries and Joint Ventures which, in the reasonable detail opinion of such Person, are uneconomic or no longer useful in the conduct of such Person's business, provided that (w) each such sale or disposition shall be -------- for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the Borrower), (x) each such sale results in consideration at least 80% of which (taking the amount of cash, the principal amount of any promissory notes and the fair market value, as determined by the Borrower in good faith, of any other consideration) shall be in the form of cash, (y) the aggregate Net Sale Proceeds of all assets sold or otherwise disposed of pursuant to pro forma calculationsthis clause (n) with all after the Effective Date shall not exceed $15,000,000 in the aggregate and (z) the Net Sale Proceeds therefrom are either applied to repay Term Loans (or reduce the Total Revolving Loan Commitment) as provided in Section 4.02(c) or reinvested in replacement assets or retained to the extent permitted by Section 4.02(c) and/or the other relevant provisions of this Agreement. To the extent the Required Banks waive the provisions of this paragraph Section 9.02 with respect to the sale or other disposition of any Collateral, or any Collateral is sold or otherwise dis posed of as permitted by this Section 9.02, such Collateral (j), and (ii) Holdings or unless transferred to the Borrower or a Subsidiary thereof) shall have given be sold or otherwise disposed of free and clear of the Agents Liens created by the Security Documents and the Banks at least 30 days prior notice of any Permitted Acquisition Agent shall take such actions (each including, without limitation, directing the Collateral Agent to take such notice a "Permitted Acquisition Notice"); -----------------------------
(kactions) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering as are appropriate in any material respect with the business of Holdings or any of its Subsidiaries;connection therewith.
Appears in 1 contract
Samples: Credit Agreement (Alliance Imaging of Michigan Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, nor will they permit any Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, or sell, transfer, lease or otherwise dispose of its property or assets (each a “Disposition”) or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:
(i) (A) Dispositions of inventory and will not permit materials in the ordinary course of business and (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(ii) Dispositions of property or assets as a result of a Recovery Event;
(iii) Dispositions of machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their respective Subsidiaries;
(iv) the dissolution of (A) any Credit Party (other than the Borrowers) to the extent any and all assets of such Credit Party are distributed to another Credit Party and (B) any Subsidiary that is not a Credit Party to the extent any and all assets of such Subsidiary are distributed to a Credit Party or another Subsidiary that is not a Credit Party;
(v) Dispositions not contemplated by the other clauses set forth in this Section 6.4(a) by the Credit Parties and their Subsidiaries toso long as such Dispositions, wind upwhich when taken together with intercompany Indebtedness and Investments permitted by Section 6.5(d), liquidate do not violate the limitations and other requirements permitted by Section 6.1(d);
(vi) the termination of any Hedging Agreement;
(vii) the sale, lease or dissolve transfer of account receivables in the commercially reasonable judgment of the Credit Parties and in the ordinary course of business;
(viii) Dispositions in the form of sale-leaseback transactions in an amount not to exceed $6,000,000 in the aggregate during the term of this Agreement;
(ix) the sale, lease or transfer of property or assets of a nature not contemplated by the foregoing clauses hereof not to exceed $5,000,000 in the aggregate in any fiscal year; provided, however, the aggregate amount of all sales, leases and transfers of property or assets pursuant to this clause (ix) shall not exceed $15,000,000 during the term of this Agreement; and
(x) any disposition of receivables (and related supporting obligations) pursuant to the terms of the Permitted Receivables Purchase Facility so long as no Default or Event of Default has occurred or is continuing or would result therefrom. provided that (A) with respect to clauses (i)(A), (iii), (v), (vi), (vii) and (viii) above, at least 75% of the consideration paid to the Credit Parties or any such Subsidiary shall be in the form of cash or Cash Equivalents, (B) immediately after giving effect to any Disposition pursuant to clause (vii) above, the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.9 hereof, recalculated for the most recently ended fiscal quarter for which information is available, (C) with respect to clauses (iv), (v), (vi), (vii), (viii) and (ix) above, no Default or Event of Default shall exist or shall result therefrom and (D) any Disposition pursuant to clauses (i), (iii) and (vii) shall be for fair market value; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall be entitled, without the consent of any Lender, to release its affairs or Liens relating to the particular assets sold; or
(b) enter into any transaction of merger or consolidation, except for (A) Investments 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, 6.5 so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior Credit Party subject to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, merger or be dissolved or liquidated into, the Borrower so long as (i) the Borrower consolidation is the surviving corporation of any such mergerentity, dissolution or liquidation and (iiB) (y) the security interests granted to the Collateral Agent for the benefit merger or consolidation of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned a Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge that is not a Credit Party with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is into a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted AcquisitionCredit Party; provided that such Credit Party will be the surviving entity and (iz) Holdings shall have -------- delivered to the Administrative Agentmerger or consolidation of a Credit Party with and into another Credit Party; provided that if any Borrower is a party thereto, at such Borrower will be the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j)surviving corporation, and (iiC) Holdings the merger or the Borrower shall have given the Agents consolidation of a Subsidiary that is not a Credit Party with and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice into another Subsidiary that is not a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Credit Party.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, nor will they permit any Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, or sell, transfer, lease or otherwise dispose of its property or assets (each a “Disposition”) or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:
(i) (A) Dispositions of inventory and will not permit materials in the ordinary course of business and (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(ii) Dispositions of property or assets as a result of a Recovery Event;
(iii) Dispositions of machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their respective Subsidiaries;
(iv) the dissolution of (A) any Domestic Credit Party (other than the Domestic Borrowers) to the extent any and all assets of such Domestic Credit Party are distributed to another Domestic Credit Party, (B) any Foreign Credit Party (other than the Foreign Borrower) to the extent any and all assets of such Foreign Credit Party are distributed to another Foreign Credit Party, (C) any Foreign Credit Party (other than the Foreign Borrower) to the extent any and all assets of such Foreign Credit Party are distributed to such Domestic Credit Party and (D) any Excluded Foreign Subsidiary;
(v) Dispositions not contemplated by the other clauses set forth in this Section 6.4(a) by the Credit Parties and their Subsidiaries toso long as such Dispositions, wind upwhich when taken together with intercompany Indebtedness and Investments permitted by Section 6.5(d), liquidate do not violate the limitations and other requirements permitted by Section 6.1(d);
(vi) the termination of any Hedging Agreement;
(vii) the sale, lease or dissolve transfer of account receivables in the commercially reasonable judgment of the Credit Parties and in the ordinary course of business;
(viii) Dispositions in the form of sale-leaseback transactions in an amount not to exceed $4,000,000 in the aggregate during the term of this Agreement; and
(ix) the sale, lease or transfer of property or assets of a nature not contemplated by the foregoing clauses hereof not to exceed $3,000,000 in the aggregate in any fiscal year; provided that (A) with respect to clauses (i)(A), (iii), (v), (vi), (vii) and (viii) above, at least 75% of the consideration paid to the Credit Parties or any such Subsidiary shall be in the form of cash or Cash Equivalents, (B) immediately after giving effect to any Disposition pursuant to clause (vii) above, the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.9 hereof, recalculated for the most recently ended fiscal quarter for which information is available, (C) with respect to clauses (iv), (v), (vi), (vii), (viii) and (ix) above, no Default or Event of Default shall exist or shall result therefrom and (D) any Disposition pursuant to clauses (i), (iii) and (vii) shall be for fair market value; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall be entitled, without the consent of any Lender, to release its affairs or Liens relating to the particular assets sold; or
(b) enter into any transaction of merger or consolidation, except for (A) Investments 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, 6.5 so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior Credit Party subject to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, merger or be dissolved or liquidated into, the Borrower so long as (i) the Borrower consolidation is the surviving corporation of any such merger, dissolution or liquidation entity and (iiB) (v) the security interests granted to merger or consolidation of an Excluded Foreign Subsidiary with an into another Excluded Foreign Subsidiary, a Domestic Credit Party or a Foreign Credit Party, (w) the Collateral Agent for the benefit merger or consolidation of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned a Foreign Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge that is not a Foreign Credit Party with and intointo a Foreign Credit Party; provided that such Foreign Credit Party will be the surviving entity, (x) the merger or be dissolved or liquidated into, consolidation of a Domestic Credit Party with and into another Domestic Credit Party; provided that if any Wholly Owned Subsidiary of the Domestic Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor party thereto, such Domestic Borrower will be the surviving corporation, (y) the merger or consolidation of a Foreign Credit Party with and into another Foreign Credit Party; provided that if the Foreign Borrower is a party thereto, the Foreign Borrower will be the surviving corporation of any such merger, dissolution or liquidation and (iiz) the security interests granted to merger or consolidation of a Foreign Credit Party (other than the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculationsForeign Borrower) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice an into a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Domestic Credit Party.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, and nor will not they permit any of their respective Subsidiaries Subsidiary (excluding Excluded Joint Ventures) to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidationaffairs, or conveysell, selltransfer, 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 (each a “Disposition”) or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:
(A) the Disposition of cash, goods, products, inventory and materials and immaterial assets in the ordinary course of business and (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(ii) the Disposition of property or assets to an unrelated party not in the ordinary course of business where and to the extent that they are the result of a Recovery Event;
(iii) the Disposition of assets no longer used or useful in the conduct of the business of the Credit Parties or any of their Subsidiaries;
(iv) the Disposition of assets from one Credit Party to another Credit Party or dissolution of any Credit Party (other than inventory any Borrower) to the extent any and all assets of such Credit Party (if any) are distributed to another Credit Party;
(v) the termination of any Bank Product;
(vi) the Disposition of property or assets (including, without limitation, Sale and Leaseback Transactions); provided, that the aggregate book value of all property and assets subject to such Disposition in any fiscal year shall not exceed 5% of Consolidated Tangible Assets as of the end of the immediately preceding fiscal year;
(vii) a Foreign Subsidiary Contribution and/or the Foreign Subsidiary Reorganization;
(viii) any Restricted Payment by any Credit Party or any of its Subsidiaries permitted pursuant to Section 6.10;
(ix) (A) any Disposition or issuance by the Company of its own Equity Interests to the extent that any such issuance does not result in a Change of Control; (B) any Disposition or issuance by any Subsidiary of the Company of its own Equity Interests to any Credit Party; and (C) to the extent necessary to satisfy any requirement of Law in the jurisdiction of incorporation of any Subsidiary of the Company, any Disposition or issuance by such Subsidiary of its own Equity Interests constituting directors’ qualifying shares or nominal holdings;
(x) the abandonment or other Disposition of intellectual property that is, in the reasonable judgment of such Person, no longer economically practicable to maintain because it is no longer useful in the operation of its business or otherwise of material value (including without limitation intellectual property that has expired on its own terms with no right to renew);
(xi) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar property or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such similar property;
(xii) Dispositions constituting Permitted Liens or Permitted Investments but only to the extent that any such Permitted Lien or Permitted Investment was otherwise permitted;
(xiii) Dispositions of accounts receivables in connection with the collection or compromise thereof in the ordinary course of business, including sales ; and
(xiv) Dispositions of inventory on consignment Investments in joint ventures to the ordinary course of business)extent required by, or enter into any partnershipsmade pursuant to customary buy/sell arrangements between, the joint ventures or sale-leaseback transactions, or purchase or otherwise acquire venture parties set forth in joint venture arrangements and similar binding arrangements. provided that (in one or a series of related transactionsA) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real clauses (vi) and (xiv) above, at least 75% of the consideration received therefor by the Credit Parties or personal property;
any such Subsidiary shall be in the form of cash or Cash Equivalents, (bB) Capital Expenditures by Holdings and its Subsidiaries after giving effect to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted any Asset Disposition pursuant to Section 9.05;
clause (dvi) Holdings and its Subsidiaries may sell or discountabove, the Credit Parties shall be in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection compliance on a Pro Forma Basis with the compromise or collection thereof;
financial covenants set forth in Section 5.9 hereof, recalculated for the most recently ended fiscal quarter for which information is available, (eC) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used with respect to acquire clauses (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereundervi) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(gxiv) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrowerabove, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists shall exist or would shall result therefrom and (including giving pro forma effect D) any Disposition pursuant to such acquisition and --- ----- clause (vi) shall be for fair market value; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall without the consent of any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurredLender, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of release its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered Liens relating to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice")particular assets sold; -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;or
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Parent will not, and nor will not it permit any of their respective Subsidiaries GCA Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease or otherwise dispose of (its property or assets or agree to do any so at a future time except the following, without duplication, shall be expressly permitted:
(i) Specified Sales;
(ii) the sale, transfer, lease or other disposition of the foregoing at any future time) all or any part of its property or assets (other than inventory A) to an unrelated party not in the ordinary course of businessbusiness (other than Specified Sales), including where and to the extent that they are the result of a Recovery Event or (B) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Parent or any of the GCA Subsidiaries, as appropriate, in its reasonable discretion, so long as and the net proceeds therefrom are used to repair or replace damaged property or to purchase or otherwise acquire new assets or property, provided that such purchase or acquisition is committed to within 180 days of receipt of the net proceeds and such purchase or acquisition is consummated within 270 days of receipt of such proceeds;
(iii) the sale, lease or transfer of property or assets (at fair market value) from the Parent to any other GCA Credit Party;
(iv) the sale, lease or transfer of property or assets from a Credit Party other than the Parent to another Credit Party; and
(v) the sale, lease or transfer of property or assets (at fair market value) not to exceed $10,000,000 in the aggregate in any fiscal year; provided, that with respect to sales of inventory on consignment in assets permitted hereunder only, the ordinary course Agent shall be entitled, without the consent of business)the Primary Financing Parties, or enter into any partnershipsto release its GCA Liens relating to the particular assets sold; or
(i) purchase, joint ventures or sale-leaseback transactions, or purchase lease or otherwise acquire (in one a single transaction or a series of related transactions) any part of the property GCA Property or assets of any Person (other than purchases or other acquisitions of inventory, materials leases, materials, GCA Property and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
as otherwise limited or prohibited herein) or (aii) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course any transaction of business with respect to real merger or personal property;
consolidation, except for (bA) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
investments or acquisitions (cincluding Permitted Acquisitions) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j)8B.5, and (iiB) Holdings the merger or consolidation of a GCA Credit Party with and into another GCA Credit Party, provided that if the Borrower shall have given Parent is a party thereto, the Agents and Parent will be the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;surviving corporation.
Appears in 1 contract
Samples: Participation Agreement (West Corp)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, nor will they permit any Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, or sell, transfer, lease or otherwise dispose of its property or assets or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:
(A) the sale, transfer, lease or other disposition of inventory and will not permit materials in the ordinary course of business and (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(ii) Dispositions resulting in Extraordinary Receipts for which such Credit Party or such Subsidiary has received any cash insurance proceeds or condemnation or expropriation award with respect to such property or assets;
(iii) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their respective Subsidiaries toSubsidiaries;
(iv) (A) the sale, wind uplease or transfer of property or assets from one Credit Party to another Credit Party, liquidate (B) the sale, lease or dissolve transfer of property or assets from a Subsidiary to a Credit Party, (C) the sale, lease or transfer of property or assets from a Subsidiary that is not a Credit Party to another Subsidiary that is not a Credit Party, (D) the dissolution of any Credit Party to the extent any and all assets of such Credit Party at the time of such dissolution are distributed to another Credit Party, (E) the dissolution of a Subsidiary that is not a Credit Party to the extent any and all assets of such Subsidiary at the time of such dissolution are distributed to another Subsidiary;
(v) the termination of any Hedging Agreement;
(vi) the sale, lease or transfer of property or assets not to exceed the greater of, in any fiscal year, (i) $100,000,000 and (ii) 7.5% of Consolidated Total Tangible Assets, excluding transfers made pursuant to Sections 6.4(a)(iv) and (ix);
(vii) the dissolution, liquidation or winding up of the affairs of, or the sale, transfer, lease or other disposition of the property or assets of, any Subsidiary in connection with the Permitted Reorganization;
(viii) sale leaseback transactions to the extent permitted pursuant to Section 6.12; and
(ix) the sale, transfer, lease or other disposition of any lines of business or business units identified to the Lenders prior to the Seventh Amendment Effective Date. provided that (A) with respect to clauses (i)(A), (ii), (iii), (vi) and (viii) above, at least 75% of the consideration received therefor by the Credit Parties or any such Subsidiary shall be in the form of cash or Cash Equivalents, (B) after giving effect to any disposition pursuant to clause (vi) or (ix) above, the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.9 hereof, recalculated for the most recently ended month for which information is available, and (C) with respect to clauses (iv), (v), (vi), (viii) and (ix) above, no Default or Event of Default shall exist or shall result therefrom; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall be entitled, without the consent of any Lender, to release its affairs Liens relating to the particular assets sold; or
(b) (i) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person, other than (A) Permitted Acquisitions and Permitted Investments and (B) except as otherwise limited or prohibited herein, purchases or other acquisitions of inventory, materials, property and equipment in the ordinary course of business, or (ii) enter into any transaction of merger or consolidation, except for (A) Investments 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, 6.5 so long as the proceeds of each Credit Party subject to such sale merger or exchange consolidation is used to acquire the surviving entity, (and results within 180 days of such sale B) (y) the merger or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings Subsidiary that is not a Credit Party with and into a Credit Party; provided that such Credit Party will be the surviving entity and (z) the merger or any consolidation of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of a Credit Party with and into another Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is will be the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j)corporation, and (iiC) Holdings the merger or consolidation of a Subsidiary that is not a Credit Party with and into another Subsidiary that is not a Credit Party. For avoidance of doubt, an issuance by the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons Equity Interests shall not interfering in any material respect with the business of Holdings or any of its Subsidiaries;be prohibited by this Section 6.4.
Appears in 1 contract
Samples: Credit Agreement (Osi Systems Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, nor will they permit any Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, or sell, transfer, lease or otherwise dispose of its property or assets (each a “Disposition”) or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:
(A) the sale, transfer, lease or other disposition of inventory and will materials in the ordinary course of business and (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(ii) the sale, transfer or other disposition of property or assets to an unrelated party not permit in the ordinary course of business where and to the extent that they are the result of a Recovery Event; to the extent Net Cash Proceeds from such Recovery Event are reinvested or used to make mandatory prepayments pursuant to Section 2.7(b)(iv);
(iii) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their respective Subsidiaries toSubsidiaries;
(iv) the sale, wind uplease or transfer of property or assets from one Credit Party to another Credit Party or dissolution of any Credit Party (other than the Borrower) to the extent any and all assets of such Credit Party are distributed to another Credit Party;
(v) the termination of any Hedging Agreement;
(vi) the sale, liquidate lease, transfer, closure or dissolve other disposition of Restaurants, the termination or non-renewal of leases and Franchise Agreements or the subletting of Restaurants, in each case as determined to be prudent in the reasonable judgment of the senior officers of the Borrower;
(vii) Sale Leaseback transactions to the extent permitted under Section 6.12;
(viii) the sale, lease or transfer of property or assets not to exceed $2,500,000 in the aggregate in any fiscal year;
(ix) sale or transfer of Restaurant property or assets to Burger King Corporation pursuant to the asset purchase agreement entered into in connection with the Burger King Acquisition; and
(x) the sale, lease or transfer of the Fiesta Leases to Fiesta or one of its affairs Subsidiaries. provided that (A) with respect to clauses (ii), (iii), (vi), (vii), (viii) and (ix) above, at least 75% of the consideration received therefor by the Credit Parties or any such Subsidiary shall be in the form of cash or Cash Equivalents, assets used in the business or Capital Stock, (B) after giving effect to any Disposition pursuant to clause (vii) above, the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.9 hereof, recalculated for the most recently ended fiscal quarter for which information is available and (C) with respect to clause (vii) above, no Default or Event of Default shall exist or shall result therefrom; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall, without the consent of any Lender, release its Liens relating to the particular assets sold; or
(b) (i) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person, other than (A) Permitted Acquisitions, (B) the lease or acquisition of real property in connection with Permitted Construction Transactions, (C) except as otherwise limited or prohibited herein, purchases or other acquisitions of inventory, materials, property and equipment in the ordinary course of business and (D) Investments permitted by Section 6.5 or (ii) enter into any transaction of merger or consolidation, except for (A) Investments 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, 6.5 so long as the proceeds of each Credit Party subject to such sale merger or exchange consolidation is used to acquire the surviving entity, (and results within 180 days of such sale B) (y) the merger or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings Subsidiary that is not a Credit Party with and into a Credit Party; provided that such Credit Party will be the surviving entity and (z) the merger or any consolidation of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of a Credit Party with and into another Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is will be the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j)corporation, and (iiC) Holdings the merger or the Borrower shall have given the Agents consolidation of a Subsidiary that is not a Credit Party with and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice into another Subsidiary that is not a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Credit Party.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and Each of the Borrower Credit Parties will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, wind up:
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease to a third party 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 or agree to do so at a future time except the following, without duplication, shall be expressly permitted:
(i) Specified Sales and Sale Leaseback Transactions to the extent permitted under Section 6.12;
(ii) the disposition of property or assets as a result of a Recovery Event;
(iii) the sale, lease, transfer or other disposition of (A) machinery, parts and equipment no longer used or useful in the conduct of the business of the Borrower or any of its Subsidiaries and (B) property and assets located at or used in connection with, or which are otherwise associated with, restaurants that are not material to the business of any Credit Party;
(iv) the sale, lease or transfer of property or assets between Credit Parties, so long as the Liens of the Administrative Agent with respect to such property or assets remain in full force and effect and fully perfected after giving effect to such transaction;
(v) the sale, lease or transfer of the properties set forth on Schedule 2.6(b)(ii), and
(vi) the sale, lease or transfer of property or assets not to exceed $1,000,000 in the aggregate in any fiscal year and $5,000,000 in the aggregate during the term of this Agreement; provided, that in each case (other than inventory with respect to clause (iv) above) (A) at least 75% of the consideration received therefor by any Credit Party or any such Subsidiary shall be in the ordinary course form of businesscash or Cash Equivalents, including sales (B) after giving effect to the sale, lease, transfer or other disposition of inventory such property or assets and the repayment of Indebtedness (if any) with the proceeds thereof, the Credit Parties shall be in compliance on consignment a pro forma basis with the financial covenants set forth in Section 5.9 hereof and shall be in compliance with all other terms and conditions of this Agreement, and (C) no Event of Default shall exist or shall result from such sale, lease, transfer or other disposition of property or assets; provided, further, that with respect to any sale or transfer of property or assets permitted hereunder to an unrelated third party, the ordinary course Administrative Agent shall be entitled, without the consent of business)the Lenders or the Required Lenders, to release its Liens relating to the particular property or enter into any partnershipsassets sold; or
(i) purchase, joint ventures or sale-leaseback transactions, or purchase lease or otherwise acquire (in one a single transaction or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, materials materials, property and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
as otherwise limited or prohibited herein) or (aii) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course any transaction of business with respect to real merger or personal property;
consolidation, except for (bA) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
investments or acquisitions (cincluding Permitted Acquisitions) the advances, investments and loans permitted pursuant to Section 9.05;
6.6, and (dB) Holdings and its Subsidiaries may sell the merger or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of Credit Party with and into another Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is will be the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;corporation.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and Each of the Borrower Credit Parties will not, and nor will not it permit any of their respective its Restricted Subsidiaries to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease or otherwise dispose of (its property or assets or agree to do any so at a future time except the following, without duplication, shall be expressly permitted:
(i) the sale, transfer, lease or other disposition of (A) inventory and materials and (B) intellectual property (including the foregoing at any future timelicense thereof) all or any part of its property or assets (other than inventory in the ordinary course of business;
(ii) the sale, including sales lease, transfer or other disposition of inventory on consignment obsolete or worn-out property or assets, whether now owned or hereafter acquired, in the ordinary course of business;
(iii) the sale, transfer or other disposition of cash and Cash Equivalents;
(iv) the disposition of property or assets as a direct result of a Recovery Event;
(A) the sale, lease or transfer of other property or assets between Credit Parties, (B) the sale, lease or transfer of other property or assets among the Credit Parties and Subsidiaries that are not Credit Parties in an aggregate amount not to exceed $15,000,000 in the aggregate during the term of this Agreement, (C) the sale, lease or transfer of other property or assets between Subsidiaries that are not Credit Parties;
(vi) the sale, lease or transfer of property or assets not to exceed $40,000,000 in the aggregate in any fiscal year; and
(vii) the liquidation and/or dissolution of any Immaterial Domestic Subsidiary so long as such Immaterial Domestic Subsidiary is not a Guarantor hereunder; provided , that, in the case of clauses (i), (iii) and (vi) above, at least 75% of the consideration received therefor by the Borrower or enter into any partnershipssuch Subsidiary is in the form of cash or Cash Equivalents; or
(b) (i) purchase, joint ventures or sale-leaseback transactions, or purchase lease or otherwise acquire (in one a single transaction or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, materials materials, property and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
as otherwise limited or prohibited herein) or (aii) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course any transaction of business with respect to real merger or personal property;
consolidation, except for (bA) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans or acquisitions permitted pursuant to Section 9.05;
7.5, (dB) Holdings and its Subsidiaries may sell the merger or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings Credit Party or any other Subsidiary with and into another Credit Party or (C) the merger or consolidation of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned a Subsidiary of that is not a Credit Party with and into another Subsidiary that is not a Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is will be the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;corporation.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and Each of the Borrower Credit Parties will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease or otherwise dispose of (its property or assets or agree to do any of the foregoing so at any a future time, except that the following, without duplication, shall be expressly permitted:
(i) all the sale, transfer, lease or any part other disposition of its property or assets (other than inventory and materials in the ordinary course of business;
(ii) the sale, including sales transfer or other disposition of inventory on consignment cash and Cash Equivalents;
(A) the disposition of property or assets as a direct result of a Recovery Event or (B) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the ordinary course conduct of businessthe business of the Borrower or any of its Subsidiaries, so long as the net proceeds therefrom are used to replace such machinery, parts and equipment or to purchase or otherwise acquire new assets or property within 180 days of receipt of the net proceeds;
(iv) the sale, lease or transfer of property or assets (for fair market value) between the Borrower and any Guarantor;
(v) the sale, lease or transfer of property or assets from a Credit Party other than the Borrower to another Credit Party;
(vi) the sale, lease or transfer of property or assets not to exceed five percent (5%) of Consolidated Total Assets in the aggregate in any fiscal year, provided that in connection with any transfer, sale or lease of assets in exchange for other assets, including, without limitation, any transfer of property relinquished in a like-kind exchange, the fair market value of the assets so transferred, sold, leased or exchanged shall not count toward the aforementioned percentage if the fair market value of the assets received in such transfer, sale or exchange is equal to or greater than the fair market value of the disposed assets and to the extent the fair market value of the assets received is less than the fair market value of the disposed assets then the difference in such values only shall be counted toward the percentage set forth above;
(vii) the sale, lease or transfer of property or assets from a Foreign Subsidiary of the Borrower to another Foreign Subsidiary of the Borrower, or from a Foreign Subsidiary of the Borrower to a Credit Party; and
(viii) the dissolution, liquidation or wind up of affairs of any Subsidiary as a result of the consummation of a merger or consolidation to the extent expressly permitted under Section 6.4(b); provided, that, in the case of clauses (i), (ii), (iii) and (vi) above, at least 75% of the consideration received therefor by the Borrower or enter into any partnershipsother Credit Party is in the form of cash or Cash Equivalents, joint ventures provided that in connection with any transfer, sale or salelease of assets in exchange for other assets, including, without limitation, any transfer of property relinquished in a like-leaseback transactionskind exchange, the fair market value of any asset received in such transfer, sale or purchase exchange shall not count toward the aforementioned percentage, if the fair market value of the assets received in such transfer, sale or exchange is equal to or greater than the fair market value of the disposed assets and to the extent the fair market value of the assets received is less than the fair market value of the disposed assets then the difference in such values only shall be counted toward the requirement set forth above; provided, further, that in the case of clause (vi) above, the Borrower may exceed the limitation provided therein to the extent that assets are sold for cash and the Net Cash Proceeds received therefrom are applied to permanently reduce the Revolving Commitments pursuant to Section 2.6(b); or
(i) purchase, lease or otherwise acquire (in one a single transaction or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, materials leases, materials, property and equipment in the ordinary course of business) of any Person, except that as otherwise limited or prohibited herein and assets acquired in exchange for other assets so long as the following shall be permitted:
related disposition of such assets was permitted under Section 6.4(a)) or (aii) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course any transaction of business with respect to real merger or personal property;
consolidation, except for (bA) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans or acquisitions permitted pursuant to Section 9.05;
6.5, (dB) Holdings the merger or consolidation of a Credit Party with and its Subsidiaries may sell into another Credit Party; provided that if the Borrower is a party thereto, the Borrower will be the surviving corporation; (C) the merger or discountconsolidation of a Target with or into a Credit Party provided that (x) if such Credit Party is the Borrower, the Borrower shall be the surviving entity of such merger or consolidation, and (y) if such Credit Party is not the Borrower, such Credit Party shall be the surviving entity of such merger or consolidation or the Target shall become a Credit Party upon the consummation of such merger or consolidation in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection accordance with the compromise terms of this Agreement, and (D) the merger or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Foreign Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned with another Foreign Subsidiary of the Borrower, so long as (i) if the transferee is with a Subsidiary, such Subsidiary is Target that will become a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Foreign Subsidiary of the Borrower may merge upon the consummation of such merger or consolidation or with and intoa Credit Party, provided that in the case of a merger or be dissolved or liquidated intoconsolidation with a Credit Party, the Borrower so long as (i) the Borrower Credit Party is the surviving corporation survivor of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;.
Appears in 1 contract
Samples: Credit Agreement (MPS Group Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, nor will they permit any Restricted Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, or sell, transfer, lease or otherwise dispose of its property or assets or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:
(i) any Restricted Subsidiary of the Company may be liquidated, wound up or dissolved, and will not permit all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of to any Credit Party;
(A) the sale, transfer, lease or other disposition of inventory and materials in the ordinary course of business and (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(iii) Recovery Events;
(iv) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their respective Restricted Subsidiaries;
(v) the sale, lease or transfer of property or assets from a Credit Party to another Credit Party;
(vi) in order to resolve disputes that occur in the ordinary course of business, Holdco and its Restricted Subsidiaries tomay discount or otherwise compromise for less than the face value thereof, wind upnotes or accounts receivable;
(vii) Holdco and its Restricted Subsidiaries may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of such Subsidiary if required by applicable law;
(viii) the grant by Holdco or any of its Restricted Subsidiaries in the ordinary course of business of a license to any Person for the use of any Intellectual Property owned by Holdco or any of its Restricted Subsidiaries;
(ix) the unwinding of any derivative instruments or agreements;
(x) the sale or disposition of Investments under clauses (f), liquidate (j), (k) and (n) of the definition of Permitted Investments (other than Investments received in connection with any Asset Disposition permitted by subsection (xv) below);
(xi) the sublease of any real or dissolve personal property in the ordinary course of business;
(xii) sales, assignments, transfers or dispositions of accounts receivable in the ordinary course of business for purposes of collection;
(xiii) the sale of the real property and improvements located at 0 Xxxx Xxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxxxx; provided that if such sale is not consummated within 90 days after the Effective Date, the applicable Credit Party shall execute and deliver to the Administrative Agent an amendment to the Mortgage Instrument with respect to such property in form and substance reasonably satisfactory to the Administrative Agent;
(xiv) the sale, lease or transfer of any property or assets acquired pursuant to a Permitted Acquisition or contributed to a Credit Party by the Parent at any time after the Effective Date; or
(xv) sales of revenue-producing assets (or of all of the outstanding Capital Stock of a Subsidiary that owns such assets):
(A) to the extent the Attributable Revenues of all such assets (and Subsidiaries) transferred in all such asset sales during any period of 365 consecutive days does not exceed 16.5% of Pro Forma Revenues for the most recent four fiscal quarter period for which Pro Forma Revenues can then be determined; provided that (1) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof and (2) the proceeds of such asset sales shall be applied as required by subsection 2.9(b)(iii); or
(B) to the extent the Attributable Revenues of all assets (and Subsidiaries) transferred in all such asset sales during any period of 365 consecutive days exceeds 16.5% but does not exceed 33% of Pro Forma Revenues for the most recent four fiscal quarter period for which Pro Forma Revenues can then be determined; provided that (1) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof, (2) the consideration received in connection with all asset sales made pursuant to this clause (B), when added to the consideration received in connection with all asset sales made pursuant to clause (A) above, shall be not less than a multiple of 7 times the Attributable EBITDA of all assets (and Subsidiaries) transferred in all such asset sales in the aggregate during such 365-day period and (45) the proceeds of such asset sales shall be applied as required by subsection 2.9(b)(iii); provided that after giving effect to any Asset Disposition pursuant to clause (xv) above, (1) to the extent that there are Extensions of Credit outstanding under the Revolving Facility, the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenant set forth in Section 5.9 hereof, recalculated for the most recently ended month for which information is available, and (2) no Default or Event of Default shall exist or shall result therefrom; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall be entitled, without the consent of the Required Lenders, to release its affairs Liens relating to the particular assets sold; or
(b) (i) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person, other than (A) Permitted Acquisitions and (B) except as otherwise limited or prohibited herein, purchases or other acquisitions of inventory, materials, property and equipment in the ordinary course of business, or (ii) enter into any transaction of merger or consolidation, except for (A) Investments 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
6.5, (dB) Holdings and its Subsidiaries may sell the merger or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge Credit Party with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisitioninto another Credit Party; provided that (i1) Holdings if a Borrower is a party thereto, such Borrower will be the surviving entity (other than in respect of any such transaction between two or more Borrowers, in which case one such Borrower shall have -------- delivered be the surviving entity; provided that (x) such surviving Borrower hereby agrees to the Administrative Agent, at the time of delivery assume and be directly liable for all Credit Party Obligations of the Permitted Acquisition Notice, a certificate Borrower that is merged with and into it upon the consummation of such merger and (y) if the Company is one of the Chief Financial Officer of Holdings showing compliance (Borrowers involved in reasonable detail as to pro forma calculationsthe merger, it shall be the surviving entity) with all of the provisions of this paragraph (j), and (ii2) Holdings if the Company is a party thereto, the Company will be the surviving entity, (C) the merger or consolidation of a Subsidiary that is not a Credit Party with and into a Credit Party; provided, that such Credit Party will be the Borrower shall have given surviving entity and (D) the Agents merger or consolidation of a Subsidiary that is not a Credit Party with and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice into a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons Subsidiary that is not interfering in any material respect with the business of Holdings or any of its Subsidiaries;a Credit Party.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, nor will they permit any Subsidiary (other than an Immaterial Subsidiary or a Transitional Subsidiary) to,
(a) dissolve, liquidate or wind up its affairs, or sell, transfer, lease or otherwise dispose of its property or assets or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:
(A) the sale, transfer, lease or other disposition of inventory and will not permit materials in the ordinary course of business, (B) the conversion of cash into Cash Equivalents and Short-Term Investments and Cash Equivalents and Short-Term Investments into cash and (C) the dissolution, liquidation or winding up of any Immaterial Subsidiary or Transitional Subsidiary; provided that any assets of such Immaterial Subsidiary or Transitional Subsidiary shall be transferred to a Credit Party or Subsidiary thereof in connection therewith;
(ii) Recovery Events for which the Credit Parties or such Subsidiary has received any cash insurance proceeds or condemnation or expropriation award with respect to such property or assets to the extent Net Cash Proceeds from such Recovery Event are used to make mandatory prepayments or are reinvested pursuant to Section 2.8(b)(iv);
(iii) the sale, lease, transfer or other disposition of machinery, parts, equipment and other obsolete, damaged, surplus or worn out assets or other assets no longer used or useful in the conduct of the business of the Credit Parties or any of their respective Subsidiaries toSubsidiaries;
(iv) the sale, wind uplease or transfer of property or assets from one Credit Party to another Credit Party;
(v) the termination of any Hedging Agreement;
(vi) the sale of (A) obsolete Vessels, liquidate (B) any Spare Vessel and (C) not more than two other Vessels during the term of this Agreement that are not of the type contemplated by clause (A) or dissolve (B);
(vii) (A) leases, subleases, licenses and sublicenses of assets and Intellectual Property in the ordinary course of business, (B) sales, transfers and other dispositions not otherwise included in clause (A) of containers in the ordinary course of business and (C) charters, subcharters, leases and subleases of Vessels in the ordinary course of business;
(viii) sale and leaseback transactions permitted under Section 7.12;
(ix) subject to compliance with the terms of Section 5.11(b), exchanges of Vessels for Vessels (with comparable fair market value) that will provide comparable levels of service in the same trade lanes and exchanges, trade-ins, swaps or other contemporaneous transfers of containers, chassis, tractors, cranes and container handling equipment;
(x) the sale, transfer or disposition of accounts in connection with the collection or compromise thereof in the ordinary course of business;
(xi) Investments made in accordance with Section 7.5;
(xii) Capital Stock issued in connection with Permitted Acquisitions;
(xiii) Capital Stock issued in connection with transactions permitted under Section 7.10;
(xiv) sales or assignments pursuant to factoring agreements of accounts receivable of any Credit Party or any Subsidiary thereof pursuant to which such Credit Party or such Subsidiary receives gross proceeds not to exceed $15,000,000 in the aggregate during the term of this Agreement; provided that such gross proceeds represent not less than 80% of the aggregate face amount of the accounts receivable so factored pursuant to any such arrangement; and
(xv) other than the items set forth in clauses (i)-(xiv), the sale, lease or transfer of property or assets not to exceed $25,000,000 in the aggregate in any fiscal year. provided that (A) with respect to clauses (i)(A), (vi), (vii)(B), (xiv) and (xv) above, at least 75% of the consideration received therefor by the Credit Parties or any such Subsidiary shall be in the form of cash or Cash Equivalents and Short-Term Investments, (B) after giving effect to any Asset Disposition pursuant to clauses (vi), (viii) or (ix) above, the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Article VI hereof, recalculated for the most recently ended quarter for which information is available, and (C) with respect to clauses (iii), (vi), (vii), (viii) and (ix) above, no Default or Event of Default shall exist or shall result therefrom; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall be entitled, without the consent of any of the Lenders, to release its affairs Liens relating to the particular assets sold; or
(b) (i) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person, other than (A) Permitted Acquisitions and Permitted Investments and (B) except as otherwise limited or prohibited herein, purchases or other acquisitions of inventory, materials, property and equipment in the ordinary course of business, or (ii) enter into any transaction of merger or consolidation, except for (A) Investments 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, 7.5 so long as the proceeds of each Credit Party subject to such sale merger or exchange consolidation is used to acquire the surviving entity, (and results within 180 days of such sale B) (y) the merger or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings Subsidiary that is not a Credit Party with and into a Credit Party; provided that such Credit Party will be the surviving entity and (z) the merger or any consolidation of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of a Credit Party with and into another Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is will be the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j)corporation, and (iiC) Holdings the merger or the Borrower shall have given the Agents consolidation of a Subsidiary that is not a Credit Party with and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice into another Subsidiary that is not a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Credit Party.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the The Borrower will not, and will not permit any of their respective 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 materials, equipment and equipment databases in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings the consummation of the Recapitalization;
(b) the Borrower and its Subsidiaries may, as lessee or lessorlessee, enter into operating leases in the ordinary course of business with respect to real or personal property;
(bc) Capital Expenditures by Holdings the Borrower and its Subsidiaries to the extent not in violation of Section 9.078.09;
(cd) the advances, investments and loans permitted pursuant to Section 9.058.06;
(de) Holdings the Borrower and its Subsidiaries may sell assets, PROVIDED that (i) the aggregate sale proceeds from all assets subject to such sales pursuant to this clause (e) (other than in the ordinary course of business, the Net Cash Proceeds of which are not required to be applied to the making of mandatory prepayments pursuant to the last sentence of Section 4.02(A)(c)) shall not exceed $3,000,000 in any fiscal year of the Borrower and (ii) the Net Cash Proceeds from sales described in (i) above are either applied to repay Term Loans as provided in Section 4.02(A)(c) or reinvested in replacement assets to the extent permitted by Section 4.02(A)(c);
(f) the Borrower and its Subsidiaries may sell other assets, PROVIDED that the aggregate sale proceeds from all such asset sales pursuant to this clause (f) does not exceed $50,000 in any fiscal year of the Borrower;
(g) the Borrower and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(eh) Holdings the Borrower and its Subsidiaries may sell or exchange specific items any item of machinery or equipment, so long as the proceeds purpose of each such sale or exchange is used to acquire (and results within 180 90 days of before or after such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(fi) Holdings the Borrower and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, license patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any each such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings the Borrower or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(gj) any Wholly Owned Subsidiary of the Borrower may be merged or consolidated with or into the Borrower (PROVIDED that the Borrower shall be the continuing or surviving corporation) or with or into any one or more wholly owned Subsidiary Guarantors (PROVIDED that the wholly owned Subsidiary or Subsidiaries shall be the continuing or surviving corporation);
(k) any wholly owned Subsidiary may sell, lease, transfer or otherwise dispose of any or all of its assets (upon voluntary liquidation or otherwise) to the Borrower or to any other Wholly Owned wholly owned Subsidiary Guarantor;
(l) the Borrower may dissolve any Subsidiary that is inactive and holds minimal assets and the continued existence of which is of no value to the Borrower, so long as (i) if any other Credit Party or the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer)Banks;
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(jm) so long as no Default or Event of Default then exists or would result therefrom therefrom, the Borrower may acquire assets or the capital stock of any Person (including giving pro forma effect to any such acquisition and --- ----- permitted by this clause (m), a "Permitted Acquisition"), other than any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurredLS Companies, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided PROVIDED that (i) Holdings shall have -------- delivered such Person (or the assets so acquired) was, immediately prior to such acquisition, engaged (or used) primarily in the Administrative Agentbusiness permitted pursuant to Section 8.01, at (ii) if such acquisition is structured as a stock acquisition, then either (A) the time of delivery Person so acquired becomes a Wholly-Owned Domestic Subsidiary of the Permitted Acquisition Notice, Borrower or (B) such Person is merged with and into a certificate Wholly-Owned Domestic Subsidiary of the Chief Financial Officer Borrower (with such Wholly-Owned Domestic Subsidiary being the surviving corporation of Holdings showing compliance (such merger), and in reasonable detail as to pro forma calculations) with any case, all of the provisions of this paragraph Section 8.14 have been complied with in respect of such Person, (j)iii) any Liens or Indebtedness assumed or issued in connection with such acquisition are otherwise permitted under Section 8.03 or 8.04, as the case may be, and (iiiv) Holdings the aggregate amount expended (including any deferred compensation or payment arrangements) by the Borrower for all such acquisitions shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice")not exceed $5,000,000; -----------------------------and
(kn) leases or subleases granted by Holdings the Borrower or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings the Borrower or any of its Subsidiaries;. To the extent the Required Banks waive the provisions of this Section 8.02 with respect to the sale or other disposition of any Collateral, or any Collateral is sold or otherwise disposed of as permitted by this Section 8.02, such Collateral in each case shall be sold or otherwise disposed of free and clear of the Liens created by the Security Documents and the Administrative Agent shall take such actions (including, without limitation, directing the Collateral Agent to take such actions) as are appropriate in order to effectuate the release and discharge of such Liens as to such Collateral.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, and nor will not they permit any of their respective Subsidiaries Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease or otherwise dispose of (its property or assets or agree to do any so at a future time except the following, without duplication, shall be expressly permitted:
(i) Specified Sales;
(ii) the sale, transfer, lease or other disposition of the foregoing at any future time) all or any part of its property or assets (other than inventory A) to an unrelated party not in the ordinary course of businessbusiness (other than Specified Sales and Scheduled Asset Dispositions), including where and to the extent that they are the result of a Recovery Event or (B) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their Subsidiaries, as appropriate, in its reasonable discretion, so long as and the net proceeds therefrom are used to repair or replace damaged property or to purchase or otherwise acquire new assets or property, provided that such purchase or acquisition is committed to within 180 days of receipt of the net proceeds and such purchase or acquisition is consummated within 270 days of receipt of such proceeds;
(iii) the sale, lease or transfer of property or assets (at fair value) between the Company and any Guarantor;
(iv) the sale, lease or transfer of property or assets from a Credit Party other than the Company to another Credit Party (other than the Subsidiary Borrower);
(v) Scheduled Asset Dispositions; and
(vi) the sale, lease or transfer of property or assets not to exceed $7,500,000 in the aggregate in any fiscal year; provided, that in each case (A) at least 75% of the consideration received therefor by the Credit Parties or any such Subsidiary is in the form of cash or Cash Equivalents, (B) after giving effect to the sale of such assets and the repayment of Indebtedness with the proceeds thereof, the Credit Parties would be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.9 hereof, recalculated for the most recently ended month for which information is available and will be in compliance with all other terms and conditions of this Credit Agreement, and (C) no Event of Default then exists or shall result from such Asset Disposition; provided, further, that with respect to sales of inventory on consignment in assets permitted hereunder only, the ordinary course Administrative Agent shall be entitled, without the consent of business)the Required Lenders, or enter into any partnershipsto release its Liens relating to the particular assets sold; or
(b) (i) purchase, joint ventures or sale-leaseback transactions, or purchase lease or otherwise acquire (in one a single transaction or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, materials leases, materials, property and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
as otherwise limited or prohibited herein) or (aii) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course any transaction of business with respect to real merger or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advancesconsolidation, investments and loans except for Investments or acquisitions permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;6.5.
Appears in 1 contract
Samples: Credit Agreement (Newark Group Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, nor will they permit any Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, or sell, transfer, lease or otherwise dispose of its property or assets or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:
(A) the sale, transfer, lease or other disposition of inventory and will not permit materials in the ordinary course of business and (B) the conversion of cash into Corporate Investment Policy Investments and Corporate Investment Policy Investments into cash;
(ii) Recovery Events;
(iii) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their respective Subsidiaries;
(iv) the sale, lease, transfer or other disposition of property or assets (at fair value) (A) between US Credit Parties, (B) between Foreign Credit Parties and (C) between Foreign Subsidiaries to(other than Foreign Credit Parties); provided that in no event shall a Credit Party sell, wind uptransfer or otherwise dispose of any Intellectual Property to a Person that is not a Credit Party, liquidate except that the Foreign Borrower may license such Intellectual Property in the ordinary course of business, without the prior written consent of the Administrative Agent;
(v) the dissolution or dissolve winding up of any Subsidiary of the Company that is not a Credit Party; provided, that the assets of any such Subsidiary shall be transferred to another Subsidiary of the Company;
(vi) [Intentionally Omitted]
(vii) [Intentionally Omitted]
(viii) the dissolution or winding up of any Credit Party (other than a Borrower); provided, that the assets of any such Credit Party shall be transferred to another Credit Party;
(A) the sale or issuance of the Capital Stock of a Foreign Subsidiary (other than a Credit Party) of the Company to any Subsidiary of the Company to the extent not otherwise prohibited under this Credit Agreement or any of the other Credit Documents, (B) the sale or issuance of the Capital Stock of a US Credit Party (other than the Company) to another US Credit Party and (C) the sale or issuance of the Capital Stock of a Foreign Credit Party to a Credit Party;
(x) the merger or consolidation of a Subsidiary of the Company (other than a Borrower) into another Subsidiary of the Company; provided that if either Subsidiary is a Credit Party, the continuing or surviving Person shall be a Credit Party;
(xi) the merger or consolidation of any Subsidiary into the Company; provided that the Company shall be the continuing or surviving entity;
(xii) transactions permitted pursuant to Sections 6.1, 6.5 and 9.21 to the extent not already permitted pursuant to this Section 6.4(a);
(xiii) the sale, lease or transfer of property or assets not to exceed $500,000 in the aggregate in any fiscal year; and
(xiv) the sale of any Foreign Subsidiary (not including any Foreign Credit Party) which the Company has demonstrated to the reasonable satisfaction of the Administrative Agent has less than $10,000,000 in total annual revenue. provided that (A) with respect to clause (ii) above, at least 75% of the consideration received therefor by the Credit Parties or any such Subsidiary shall be in the form of cash or Corporate Investment Policy Investments, and (B) with respect to clause (iv), no Default or Event of Default shall exist or shall result therefrom; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall, without the consent of the Required Lenders, release its affairs Liens relating to the particular assets sold; or
(b) (i) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person, other than (A) Permitted Acquisitions and (B) except as otherwise limited or prohibited herein, purchases, leases or acquisitions of inventory, materials, property and equipment in the ordinary course of business, or (ii) enter into any transaction of merger or consolidation, except for (A) Permitted Acquisitions and Investments 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunderSections 6.4(a) and does not otherwise prohibit 6.5 and (B) the granting merger or consolidation of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge Credit Party with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisitioninto another Credit Party; provided that (i) Holdings shall have -------- delivered to if the Administrative AgentCompany is a party thereto, at the time of delivery of Company will be the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;surviving corporation.
Appears in 1 contract
Samples: Credit Agreement (Lionbridge Technologies Inc /De/)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and Each of the Borrower Credit Parties will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease or otherwise dispose of (its property or assets or agree to do so at a future time (unless such agreement is expressly conditioned on obtaining any necessary consent under this Agreement) except the following, without duplication, shall be expressly permitted:
(i) the sale, transfer, lease or other disposition of the foregoing at any future time) all or any part of its property or assets (other than inventory in the ordinary course of business;
(ii) the sale, including transfer or other disposition of cash and Cash Equivalents;
(A) the disposition of property or assets as a direct result of a Recovery Event or (B) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Borrower or any of its Subsidiaries, so long as the Net Cash Proceeds therefrom are used to replace such machinery, parts and equipment or to purchase or otherwise acquire new assets or property within 180 days of receipt of the net proceeds to the extent reasonably required for the continuing conduct of the business of the Borrower and its Subsidiaries not to exceed $25,000,000 in the aggregate in Net Cash Proceeds in any fiscal year for all assets not replaced;
(iv) the sale, lease or transfer of property or assets from the Borrower to any Guarantor, whether for consideration or as a capital contribution;
(v) the sale, lease or transfer of property or assets from a Credit Party other than the Borrower to another Credit Party whether for consideration or as a capital contribution;
(vi) the termination of any Hedging Agreement permitted pursuant to Section 6.1;
(vii) the Spin-off; and
(viii) the sale, lease or transfer of property or assets not to exceed $25,000,000 in the aggregate in any fiscal year; provided, that, (A) in the case of clause (viii) above, at least 75% of the consideration received therefor by the Borrower or any other Credit Party is in the form of cash or Cash Equivalents and (B) in the case of clause (v) above the transferring Credit Party may liquidate or dissolve; provided, further, that with respect to sales of inventory on consignment in assets permitted hereunder only, the ordinary course Administrative Agent shall be entitled, without the consent of business)the Required Lenders, or enter into any partnershipsto release, joint ventures or sale-leaseback transactionsand shall release, or purchase its Liens relating to the particular assets sold; or
(i) purchase, lease or otherwise acquire (in one a single transaction or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, materials leases, materials, property and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
as otherwise limited or prohibited herein) or (aii) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course any transaction of business with respect to real merger or personal property;
consolidation, except for (bA) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans or acquisitions permitted pursuant to Section 9.05;
6.5, and (dB) Holdings and its Subsidiaries may sell the merger or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of Credit Party with and into another Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is will be the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;corporation.
Appears in 1 contract
Samples: Credit Agreement (Neighborcare Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, and nor will not they permit any of their respective Subsidiaries Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidationaffairs, or conveysell, selltransfer, lease or otherwise dispose of (its property or assets or agree to do any of the foregoing so at any a future time) all or any part of its property or assets (other than inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following following, without duplication, shall be expressly permitted:
(aA) Holdings the sale, transfer, lease or other disposition of inventory and its Subsidiaries may, as lessee or lessor, enter into operating leases materials in the ordinary course of business with respect to real or personal propertyand (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(bii) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07Recovery Events;
(ciii) the advancessale, investments lease, transfer or other disposition of machinery, parts and loans equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their Subsidiaries;
(iv) the sale, lease or transfer of property or assets (at fair value) between the Borrower and any Guarantor;
(v) the sale, lease or transfer of property or assets permitted pursuant to Section 9.056.12;
(dvi) Holdings and its Subsidiaries may sell the sale, lease or discount, in each case without recourse, accounts receivable arising in the ordinary course transfer of business, but only in connection with the compromise property or collection thereofassets from a Subsidiary which is not a Credit Party to another Subsidiary which is not a Credit Party;
(evii) Holdings and its Subsidiaries may sell the sale, lease or exchange specific items transfer of machinery property or equipment, assets from Subsidiary which is not a Credit Party to any Credit Party;
(viii) so long as the proceeds Credit Parties are in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.9 hereof, a one-time dividend of each such sale a subsidiary, division or exchange line of business whose (A) revenues do not exceed $100,000,000, and (B) business is used unrelated to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchangedCredit Parties' primary business;
(fix) Holdings and its Subsidiaries maythe sale, lease or transfer of property or assets from a Credit Party other than the Borrower to another Credit Party; and
(x) the sale, lease or transfer of property or assets not to exceed 10% of Total Consolidated Assets as reported in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary audited financial statements of the Borrower may transfer assets most recently delivered to the Borrower Administrative Agent pursuant to Section 5.1 per sale or series of related sales; provided that (A) with respect to clauses (i)(A), (ii), (iii) and (vii) above, if the Total Leverage Ratio, on a Pro Forma Basis, is greater than or equal to 3.5 to 1.0, at least 75% of the consideration received therefor by the Credit Parties or any such Subsidiary shall be in the form of cash or Cash Equivalents, (B) after giving effect to any other Wholly Owned Subsidiary of Asset Disposition pursuant to clause (vii) above, the BorrowerCredit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.9 hereof, so long as (i) if recalculated for the transferee most recently ended month for which information is a Subsidiaryavailable, such Subsidiary is a Guarantor and (iiC) the security interests granted with respect to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected clause (to at least the same extent as in effect immediately prior to such transfer);
(hvii) any Wholly Owned Subsidiary of the Borrower may merge with and intoabove, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists shall exist or would shall result therefrom (including giving pro forma effect therefrom; provided, further, that with respect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as sales of assets permitted hereunder only, the Administrative Agent shall be entitled, without the consent of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurredRequired Lenders, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of release its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered Liens relating to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice")particular assets sold; -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;or
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and Neither the Borrower will not, and will not permit nor any of their respective its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter shall:
(a) Enter into any a transaction of merger or consolidation, except (i) a member of the Consolidated Group may be a party to a transaction of merger or conveyconsolidation with another member of the Consolidated Group and (ii) any acquisition permitted pursuant to clause (c) immediately below may be effected by a merger with and into a Credit Party or Subsidiary of a Credit Party so long as, sellin either case, lease (A) if the Borrower is a party thereto, (x) the Borrower shall be the surviving corporation and (y) the Borrower shall not alter or amend its existing capital structure in a manner changing its status as an employee-owned corporation, (B) if a Subsidiary Guarantor is a party thereto and the Borrower is not a party thereto, the Subsidiary Guarantor shall be the surviving corporation, and (C) no Default or Event of Default shall exist either immediately prior to or immediately after giving effect thereto;
(b) Sell, lease, transfer or otherwise dispose of assets, property and/or operations (or agree to do including any sale-leaseback transaction, but excluding (x) the sale of the foregoing at any future time) all or any part of its property or assets (other than inventory in the ordinary course of business; (y) the sale or disposition of plant, including sales of inventory on consignment property and equipment which is no longer useful in the ordinary course business or as to which the proceeds therefrom are reinvested in plant, property and equipment within six months thereof; and (z) the sale, lease, transfer or other disposition of businessthe Wystar record keeping software system), unless
(i) the book value of such assets, property and/or operations do not in the aggregate exceed $5,000,000 in any fiscal year, and
(ii) no Default of Event of Default exists or enter into any partnershipswould exist after giving effect thereto on a Pro Forma Basis, joint ventures or sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part without the prior written consent of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07Majority Banks;
(c) Acquire all or any portion of the advancescapital stock or other ownership interest in any Person or all or any substantial portion of the assets, investments and loans permitted property and/or operations of any Person or make any Investment in any Subsidiary, without the prior written consent of the Majority Banks, unless
(i) the amount of any such acquisition or Investment, together with any other acquisitions or Investments made pursuant to Section 9.05;
this subsection (dc) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising shall not exceed the sum of (A) $10,000,000 in the ordinary course aggregate in any fiscal year plus (B) the amount of business, but only any payment due in such fiscal year in connection with the compromise KPMG Acquisition (of which sum, not more than $10,000,000 may be paid in cash in such fiscal year); provided, however, that the total amount of any such acquisition or collection thereofInvestment in any one Person or any one Subsidiary shall not exceed $20,000,000 in the aggregate at any one time; and provided, further, that, notwithstanding the foregoing, the total amount paid in connection with the KPMG Acquisition shall not exceed $16,000,000;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit Board of Directors of the Secured Creditors pursuant to Person which is the Security Documents in subject of the assets so transferred acquisition shall remain in full force and effect and perfected (to at least have approved the same extent as in effect immediately prior to such transfer);acquisition; and
(hiii) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom exist after giving effect thereto on a Pro Forma Basis; or
(including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as d) In the case of the first day of the most recently completed Test Period Borrower and any Material Subsidiary which is not wholly-owned, liquidate, wind-up or dissolve, whether voluntarily or involuntarily (including or suffer to permit any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during such liquidation or subsequent to such Test Perioddissolution)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;.
Appears in 1 contract
Samples: Credit Agreement (Watson Wyatt & Co)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the The Borrower will not, and nor will not the Borrower permit any of their respective its Subsidiaries to, wind up, liquidate or dissolve its 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 time) all or any part of its property or assets (other than inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 materials, general intangibles, equipment, goods and equipment services in the ordinary course of business) of any PersonPerson or agree to do any of the foregoing at any future time, except that the following shall be permitted:
(a) Holdings the Borrower and its Subsidiaries may, as lessee or lessorlessee, enter into operating leases in the ordinary course of business with respect to real real, personal, movable or personal immovable property;
(b) Capital Expenditures by Holdings the Borrower and its Subsidiaries to the extent not in violation of Section 9.079.11;
(c) the advances, investments and loans Investments permitted pursuant to Section 9.05;
(d) Holdings 9.05 and its Subsidiaries may sell the disposition or discount, in each case without recourse, accounts receivable arising liquidation of Cash Equivalents in the ordinary course of business;
(d) the Borrower and any of its Subsidiaries may sell or otherwise dispose of assets (excluding capital stock of, but only or other equity interests in, Subsidiaries, Joint Ventures and Unrestricted Subsidiaries) which, in the reasonable opinion of such Person, are obsolete, uneconomic or no longer useful in the conduct of such Person's business, provided that except with respect to asset dispositions or transfers arising out of, or in connection with, the events described in clauses (i) and (ii) of the definition of Recovery Event, (w) each such sale or disposition shall be for an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the Borrower), (x) to the extent any such sale or disposition generates Net Sale Proceeds equal to or greater than $1,500,000, such sale or disposition (I) results in consideration at least 75% of which (taking into account the amount of cash, the principal amount of any promissory notes and the fair market value, as determined by the Borrower in good faith, of any other consideration) shall be in the form of cash or (II) in the case of an asset or assets subject to Capitalized Lease Obligations, results in the assumption of all of the Capitalized Lease Obligations or other purchase money obligations of the Borrower or such Subsidiary in respect of such asset by the purchaser thereof, (y) the aggregate Net Sale Proceeds from all assets sold or otherwise disposed of pursuant to this clause (d), when added to the aggregate amount of all Capitalized Lease Obligations and all other purchase money obligations assigned in connection with all assets sold or otherwise disposed of pursuant to this clause (d) shall not exceed $12,500,000 in the compromise aggregate in any fiscal year of the Borrower and (z) in the case of any sale or collection thereofdisposition of an asset constituting an Asset Sale, the Net Sale Proceeds therefrom are either applied to repay Term Loans and/or reduce the Total Term Loan Commitment and/or the Total Revolving Loan Commitment as provided in Section 4.02(c) or reinvested in replacement assets or retained to the extent permitted by Section 4.02(c) and/or the other relevant provisions of this Agreement;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may convey, lease, license, sell or otherwise transfer all or any part of its business, properties and assets to the Borrower or to any other Wholly Owned Subsidiary of the BorrowerGuarantor, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer)) and all actions required to maintain said perfected status have been taken;
(hf) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower or any Subsidiary Guarantor, so long as (i) the Borrower or such Subsidiary Guarantor is the surviving corporation of any such merger, dissolution or liquidation and (ii) the any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation)) and all actions required to maintain said perfected status have been taken;
(ig) any Wholly Owned Foreign Subsidiary of the Borrower may merge be merged or amalgamated with and into, or be dissolved or liquidated into, or transfer any Wholly of its assets to, any Wholly-Owned Foreign Subsidiary of the Borrower Borrower, so long as (i) such Wholly Wholly-Owned Foreign Subsidiary is a Guarantor and is the surviving corporation of any such merger, amalgamation, dissolution or liquidation and (ii) the any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Wholly-Owned Foreign Subsidiary and such Foreign Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution amalgamation, dissolution, liquidation or liquidation)transfer) and all actions required to maintain said perfected status have been taken;
(h) the Borrower and its Wholly-Owned Domestic Subsidiaries shall be permitted to make Permitted Acquisitions, so long as such Permitted Acquisitions are effected in accordance with the requirements of Section 8.14;
(i) the Borrower and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons or one another, so long as any such license by the Borrower or any of its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by the Borrower or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(j) the Borrower and its Domestic Subsidiaries may transfer assets to Wholly-Owned Foreign Subsidiaries, so long as (x) no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as the time of the first day respective transfer and (y) the aggregate fair market value of all such assets so transferred (determined in good faith by the Board of Directors or senior management of the most recently completed Test Period (including any other Permitted Acquisition that occurred, Borrower) to all such Foreign Subsidiaries on and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any after the Effective Date does not exceed the sum of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and $12,500,000 plus (ii) Holdings or the aggregate fair market value of all assets of Foreign Subsidiaries of the Borrower shall have given (as determined in good faith by senior management of the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each Borrower) transferred by such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Foreign Subsidiaries to third Persons not interfering in the Borrower and any material respect with the business of Holdings or any of its Subsidiaries;Subsidiary Guarantor pursuant to Section 9.02
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the The Borrower will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease or otherwise dispose of (its property or assets or agree to do any so at a future time except the following, without duplication, shall be expressly permitted:
(i) Specified Sales;
(ii) the sale, transfer, lease or other disposition of the foregoing at any future time) all or any part of its property or assets (A) which are the subject of a Recovery Event; provided, that the net cash proceeds of such disposition are applied in accordance with Section 2.8(b)(ii) or (B) the sale, lease, transfer or other than inventory disposition of machinery, parts and equipment no longer used or useful in the ordinary course conduct of businessthe business of the Borrower or any of its Subsidiaries, including as appropriate, in its reasonable discretion, so long as the net proceeds therefrom are used to repair or replace damaged property or to purchase or otherwise acquire new assets or property, provided that such purchase or acquisition is committed to within 180 days of receipt of the net proceeds and such purchase or acquisition is consummated within 270 days of receipt of such proceeds;
(iii) the sale, lease or transfer of property or assets (at fair value) between the Borrower and any Guarantor;
(iv) the sale, lease or transfer of property or assets not to exceed $1,000,000 in the aggregate in any fiscal year; provided, that in the case of a sale, lease or transfer pursuant to Section 6.5(a)(iv), at least 75% of the consideration received therefor by the Borrower or any such Subsidiary is in the form of cash or Cash Equivalents; provided, further, that with respect to sales of inventory on consignment in assets permitted hereunder only, the ordinary course Administrative Agent shall be entitled, without the consent of business)the Required Lenders, or enter into any partnershipsto release its Liens relating to the particular assets sold; or
(b) (i) purchase, joint ventures or sale-leaseback transactions, or purchase lease or otherwise acquire (in one a single transaction or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, materials leases, materials, property and equipment in the ordinary course of business) of any Person, except as otherwise limited or prohibited herein); provided, that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists shall have occurred and be continuing or would result therefrom therefrom, the Borrower may acquire all or a majority of the Capital Stock or other ownership interest in any Person (including in a similar or related line of business) or all or a substantial portion of the assets, property and/or operations of a Person (in a similar or related line of business); provided, however, that both before and after giving effect to any such Acquisition otherwise permitted hereunder, (A) the aggregate outstanding amount of Revolving Loans plus Swingline Loans plus LOC Obligations shall not exceed an amount equal to 20% of the aggregate Revolving Committed Amount and (B) the Leverage Ratio on a pro forma basis before and after giving effect to any such acquisition Acquisition shall not exceed 2.0 to 1.0 or (ii) enter into any transaction of merger or consolidation, except for (A) investments or acquisitions permitted pursuant to Section 6.6, and --- ----- any additional Indebtedness resulting therefrom (B) the merger or incurred consolidation of a Credit Party with and into another Credit Party, provided that, except as provided in this Section 6.4, if the Borrower is a party thereto, the Borrower will be the surviving corporation. Notwithstanding the foregoing and so long as no Default or assumed in connection therewith as if such acquisition had Event of Default shall have occurred and be continuing, the Borrower may merge into, or be converted into TTM Technologies, Inc., a Delaware corporation (“TTM Delaware”) for the sole purpose of reincorporating the Borrower as a Delaware corporation, with TTM Delaware being the surviving corporation of such Indebtedness had been incurred as of merger or conversion (the first day of “Reincorporation Merger”). In connection with the most recently completed Test Period (including any other Permitted Acquisition that occurred, Reincorporation Merger the Borrower represents and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that warrants that: (i) Holdings immediately preceding the Reincorporation Merger, TTM Delaware shall be a wholly-owned Subsidiary of the Borrower and shall have -------- delivered no assets or liabilities, (ii) the terms of the Reincorporation Merger shall provide for the shares of Capital Stock of the Borrower to be converted into or exchanged for shares of TTM Delaware, and no other consideration being paid or issued to any other Person, (iii) upon consummation of the Reincorporation Merger, TTM Delaware shall confirm to the Administrative Agent, at pursuant to a written instrument satisfactory in form and substance to the time of delivery Administrative Agent that TTM Delaware has become liable for all Obligations of the Permitted Acquisition NoticeBorrower under this Agreement and the other Credit Documents, a certificate (iv) upon consummation of the Chief Financial Officer of Holdings showing compliance Reincorporation Merger, the Administrative Agent shall have received all documents and instruments, if any, reasonably requested by the Administrative Agent to be filed, registered or recorded to create or perfect the Liens intended to be created under the Credit Documents and (in reasonable detail as to pro forma calculationsv) with all upon the satisfaction of the provisions of this paragraph conditions provided in clauses (ji), (ii), (iii) and (iiiv) Holdings or hereof, all references to the Borrower in the Credit Documents shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries be amended to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;refer to TTM Delaware, mutatis mutandis.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the The Borrower will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease or otherwise dispose of (its property or assets or agree to do any so at a future time except the following, without duplication, shall be expressly permitted:
(i) Specified Sales;
(ii) the sale, transfer, lease or other disposition of the foregoing at any future time) all or any part of its property or assets (other than inventory A) to an unrelated party not in the ordinary course of businessbusiness (other than Specified Sales), including where and to the extent that they are the result of a Recovery Event or (B) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Borrower or any of its Subsidiaries, as appropriate, in its reasonable discretion, so long as and the net proceeds therefrom are used to repair or replace damaged property or to purchase or otherwise acquire new assets or property, PROVIDED that such purchase or acquisition is committed to within 180 days of receipt of the net proceeds and such purchase or acquisition is consummated within 270 days of receipt of such proceeds, PROVIDED, FURTHER, that pending any such purchase or acquisition, such proceeds shall be held in a cash collateral account pledged to the Administrative Agent for the ratable benefit of the Lenders;
(iii) the sale, lease or transfer of property or assets (at fair value) between the Borrower and any Guarantor;
(iv) the sale, lease or transfer of property or assets from a Credit Party other than the Borrower to another Credit Party;
(v) the sale, lease or transfer of property or assets not to exceed $1,000,000 in the aggregate in any fiscal year; and
(vi) the sale, transfer or other disposition of the Mortgaged Property located at 000 Xxxx Xxxxxxx, Fort Xxxxxx Beach, Florida so long as the net proceeds therefrom in an amount not to exceed $3,500,000 are used to (i) purchase a new parcel of real property in the same general vicinity as said Mortgaged Property and (ii) construct a new facility thereon, provided that such construction shall commence within 180 days of Borrower's receipt of the net proceeds from such sale, transfer or other disposition; PROVIDED, that in each case at least 75% of the consideration received therefor by the Borrower or any such Subsidiary is in the form of cash or Cash Equivalents; PROVIDED, FURTHER, that with respect to sales of inventory on consignment assets permitted hereunder only, the Administrative Agent shall be entitled, without the consent of the Required Lenders, to release its Liens relating to the particular assets sold, and in the ordinary course of business)event the requirements set forth in Section 6.5(a)(vi) above are satisfied, or enter into any partnershipsthe Administrative Agent shall release its lien with respect to such Mortgaged Property; or
(b) (i) purchase, joint ventures or sale-leaseback transactions, or purchase lease or otherwise acquire (in one a single transaction or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, materials leases, materials, property and equipment in the ordinary course of business) of any Person, except as otherwise limited or prohibited herein) provided that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists shall have occurred and be continuing or would result therefrom therefrom, the Borrower may acquire all or a majority of the Capital Stock or other ownership interest in any Person (including in a similar or related line of business and which has earnings before interest, taxes, depreciation and amortization for the prior four fiscal quarters in an amount greater than $0) or all or a substantial portion of the assets, property and/or operations of a Person (in a similar or related line of business and which had earnings before interest, taxes, depreciation and amortization for the prior four fiscal quarters in an amount greater than $0) in an aggregate amount not to exceed $2,500,000 for any individual acquisition and $5,000,000 in the aggregate for all such acquisitions in any fiscal year; provided, however that after giving pro forma effect to any such acquisition and --- ----- otherwise permitted hereunder, there shall be not less than $5,000,000 of availability under Section 2.1 or (ii) enter into any additional Indebtedness resulting therefrom transaction of merger or incurred consolidation, except for (A) investments or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent acquisitions permitted pursuant to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j)Section 6.6, and (iiB) Holdings the merger or consolidation of a Credit Party with and into another Credit Party, PROVIDED that if the Borrower shall have given is a party thereto, the Agents and Borrower will be the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;surviving corporation.
Appears in 1 contract
Samples: Credit Agreement (Integrated Defense Technologies Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the The Borrower will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs affairs, sell, transfer, lease or otherwise dispose of its property or assets or agree to do so at a future time except the following, without duplication, shall be expressly permitted:
(i) Specified Sales;
(ii) the sale, transfer, lease or other disposition of property or assets to an unrelated party not in the ordinary course of business (other than Specified Sales), where and to the extent that they are the result of a Recovery Event and the net proceeds therefrom are used to repair or replace damaged property or to purchase or otherwise acquire new assets or property, provided that such purchase or acquisition is consummated within 180 days of such receipt;
(iii) the sale, lease or transfer of property or assets (at fair value) between the Borrower and any Guarantor;
(iv) the sale, lease or transfer of property or assets from a Domestic Credit Party other than the Borrower or any Guarantor to another Domestic Credit Party;
(v) the sale and lease of G&L Industries' property permitted pursuant to Section 6.13 hereof; and
(vi) the sale, lease or transfer of property or assets not to exceed $15,000,000 in the aggregate; provided, that in each case at least 75% of the consideration received therefor by the Borrower or any such Subsidiary is in the form of cash or Cash Equivalents; or
(b) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person (other than purchases or other acquisitions of inventory, leases, materials, property and equipment in the ordinary course of business, except as otherwise limited or prohibited herein), or enter into any transaction of merger or consolidation, except for (i) investments 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount6.6, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to G&L Acquisition, (iii) the Collateral Agent for the benefit merger or consolidation of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force a Domestic Credit Party with and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of into another Domestic Credit Party, provided that if the Borrower may merge with and into, or be dissolved or liquidated intois a party thereto, the Borrower so long as will be the surviving corporation, and (iiv) the Borrower is merger or consolidation of any other Person with and into a Credit Party, provided that in any such case a Credit Party shall be the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including exist after giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate thereto on a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Pro Forma Basis.
Appears in 1 contract
Samples: Credit Agreement (Galey & Lord Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, and nor will not they permit any of their respective Subsidiaries Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidationaffairs, or conveysell, selltransfer, 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 (each a “Disposition”) or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:
(A) the sale, transfer, lease or other than disposition of inventory and materials in the ordinary course of business and (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(ii) the sale, transfer or other disposition of property or assets to an unrelated party not in the ordinary course of business where and to the extent that they are the result of a Recovery Event;
(iii) the sale, lease, transfer or other disposition of (A) machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their Subsidiaries and (B) obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(iv) the sale, including sales lease or transfer of inventory on consignment property or assets from one Credit Party to another Credit Party or dissolution of any Credit Party to the extent any and all assets are distributed to another Credit Party;
(v) the termination of any Hedging Agreement;
(vi) Dispositions of equipment or real property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property within twelve (12) months of such Disposition or (B) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property within 12 months of such Disposition;
(vii) the licensing of Intellectual Property in the ordinary course of businessbusiness consistent with past practice;
(viii) the sale, lease or transfer of property or assets not to exceed $20,000,000 in the aggregate in any fiscal year;
(ix) the merger of a Credit Party or a Subsidiary thereof with another Credit Party or a Subsidiary thereof to the extent permitted by Section 6.4(b)(ii) below; and
(x) the Corporate Restructuring. provided that (A) after giving effect to any Disposition pursuant to clause (viii) above, the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.9 hereof, recalculated for the most recently ended month for which information is available, and (B) with respect to clauses (v), (vi) and (viii) above, no Default or enter into any partnershipsEvent of Default shall exist or shall result therefrom; or
(b) (i) purchase, joint ventures or sale-leaseback transactions, or purchase lease or otherwise acquire (in one a single transaction or a series of related transactions) any part of the property or assets (of any Person, other than (A) Permitted Investments and (B) except as otherwise limited or prohibited herein, purchases or other acquisitions of inventory, materials materials, property and equipment in the ordinary course of business, or (ii) consummate any transaction of any Personmerger or consolidation, except that the following shall be permitted:
for (aA) Holdings and its Subsidiaries may, as lessee Investments or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans acquisitions permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, 6.5 so long as the proceeds of each Credit Party subject to such sale merger or exchange consolidation is used to acquire the surviving entity, (and results within 180 days of such sale B) (y) the merger or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings Subsidiary that is not a Credit Party with and into a Credit Party; provided that such Credit Party will be the surviving entity and (z) the merger or any consolidation of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of a Credit Party with and into another Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as will be the surviving corporation, (iC) the Borrower merger or consolidation of a Subsidiary that is the surviving corporation of any such merger, dissolution or liquidation not a Credit Party with and into another Subsidiary that is not a Credit Party and (iiD) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Corporate Restructuring.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the The Borrower will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs affairs, sell, transfer, lease or otherwise dispose of its property or assets or agree to do so at a future time except the following, without duplication, shall be expressly permitted:
(i) Specified Sales;
(ii) the sale, transfer, lease or other disposition of property or assets (a) to an unrelated party not in the ordinary course of business (other than Specified Sales), where and to the extent that they are the result of a Recovery Event or (b) the sale, lease, transfer or other disposition of machinery, parts and equipment, no longer used or useful in the conduct of the business of the Borrower or any of its Subsidiaries, as appropriate, in its reasonable discretion;
(iii) the sale, lease or transfer of property or assets (at fair value) between and among Credit Parties; and
(iv) transfers of Property to Foreign Subsidiaries so long as (A) such transfers, together with investments in such Foreign Subsidiaries permitted hereunder do not exceed $30,000,000 in the aggregate (such transferred Property to be valued at the greater of book value of fair market value) and (B) the Borrower shall have provided the Agent with a list of the Property then being transferred and the related values of such Property; and
(v) the sale, lease or transfer of property or assets (including sale leaseback transactions not prohibited by Section 6.13) not to exceed $10,000,000 in the aggregate in any fiscal year; provided, that in each case (except for clause (iii) above) at least 75% -------- of the consideration received therefor by the Borrower or any such Subsidiary is in the form of cash or Cash Equivalents; or
(b) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person (other than purchases or other acquisitions of inventory, leases, materials, property and equipment in the ordinary course of business and other Capital Expenditures permitted hereunder, except as otherwise limited or prohibited herein and other than as permitted pursuant to Section 2.7(b)(vi) and Section 6.7), or enter into any transaction of merger or consolidation, except for (i) investments 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings 6.6 and its Subsidiaries may sell or discount6.7, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to Acquisition, and (iii) the Collateral Agent for the benefit merger or consolidation of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force a Credit Party with and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of into another Credit Party, provided that if the Borrower may merge with and into, or be dissolved or liquidated intois a party thereto, the Borrower so long as (i) the Borrower is will -------- be the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;corporation.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, nor will they permit any Subsidiary (excluding Excluded Joint Ventures) to,
(a) dissolve, liquidate or wind up its affairs, or sell, transfer, lease or otherwise dispose of its property or assets (each a “Disposition”) or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:
(A) the Disposition of cash, goods, products, inventory and will materials and immaterial assets in the ordinary course of business and (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(ii) the Disposition of property or assets to an unrelated party not permit in the ordinary course of business where and to the extent that they are the result of a Recovery Event; to the extent Net Cash Proceeds from such Recovery Event are reinvested or used to make mandatory prepayments pursuant to Section 2.7(b)(vi);
(iii) the Disposition of assets no longer used or useful in the conduct of the business of the Credit Parties or any of their respective Subsidiaries;
(iv) the Disposition of assets from one Credit Party to another Credit Party or dissolution of any Credit Party (other than any Borrower) to the extent any and all assets of such Credit Party (if any) are distributed to another Credit Party;
(v) the termination of any Bank Product;
(vi) the Disposition of property or assets (including, without limitation, Sale and Leaseback Transactions); provided, that the aggregate book value of all property and assets subject to such Disposition in any fiscal year shall not exceed 5% of Consolidated Tangible Assets as of the end of the immediately preceding fiscal year;
(vii) a Foreign Subsidiary Contribution;
(viii) any Restricted Payment by any Credit Party or any of its Subsidiaries topermitted pursuant to Section 6.10;
(ix) (A) any Disposition or issuance by the Company of its own Equity Interests to the extent that any such issuance does not result in a Change of Control; (B) any Disposition or issuance by any Subsidiary of the Company of its own Equity Interests to any Credit Party; and (C) to the extent necessary to satisfy any requirement of Law in the jurisdiction of incorporation of any Subsidiary of the Company, wind upany Disposition or issuance by such Subsidiary of its own Equity Interests constituting directors’ qualifying shares or nominal holdings;
(x) the abandonment or other Disposition of intellectual property that is, liquidate in the reasonable judgment of such Person, no longer economically practicable to maintain because it is no longer useful in the operation of its business or dissolve otherwise of material value (including without limitation intellectual property that has expired on its affairs own terms with no right to renew);
(xi) Dispositions of property to the extent that (i) such property is exchanged for credit against the purchase price of similar property or (ii) the proceeds of such Disposition are promptly applied to the purchase price of such similar property;
(xii) Dispositions constituting Permitted Liens or Permitted Investments but only to the extent that any such Permitted Lien or Permitted Investment was otherwise permitted;
(xiii) Dispositions of accounts receivables in connection with the collection or compromise thereof in the ordinary course of business; and
(xiv) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to customary buy/sell arrangements between, the joint venture parties set forth in joint venture arrangements and similar binding arrangements. provided that (A) with respect to clauses (vi) and (xiv) above, at least 75% of the consideration received therefor by the Credit Parties or any such Subsidiary shall be in the form of cash or Cash Equivalents, (B) after giving effect to any Asset Disposition pursuant to clause (vi) above, the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.9 hereof, recalculated for the most recently ended fiscal quarter for which information is available, (C) with respect to clauses (vi) and (xiv) above, no Default or Event of Default shall exist or shall result therefrom and (D) any Disposition pursuant to clause (vi) shall be for fair market value; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall without the consent of any Lender, release its Liens relating to the particular assets sold; or
(b) (i) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person, other than (A) Permitted Investments, Capital Expenditures, Sale and Leaseback Transactions and (B) except as otherwise limited or prohibited herein, purchases or other acquisitions of inventory, materials, property, equipment or any other assets in the ordinary course of business, or (ii) enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of except for (or agree to do any of the foregoing at any future timeA) all or any part of its property or assets (other than inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, Permitted Investments so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior Credit Party subject to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, merger or be dissolved or liquidated into, the Borrower so long as (i) the Borrower consolidation is the surviving corporation of any such mergerentity, dissolution or liquidation and (iiB) (y) the security interests granted to the Collateral Agent for the benefit merger or consolidation of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned a Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge that is not a Credit Party with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as into a Credit Party (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidationexcluding Excluded Joint Ventures);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that such Credit Party will be the surviving entity and (iz) Holdings shall have -------- delivered to the Administrative Agentmerger or consolidation of a Credit Party with and into another Credit Party; provided that if any Borrower is a party thereto, at such Borrower will be the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j)surviving Person, and (iiC) Holdings the merger or the Borrower shall have given the Agents consolidation of a Subsidiary that is not a Credit Party with and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice into another Subsidiary that is not a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Credit Party.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and Each of the Borrower Credit Parties will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, wind up:
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease to a third party 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 or agree to do so at a future time except the following, without duplication, shall be expressly permitted:
(i) Specified Sales;
(ii) Sale Leaseback Transactions to the extent permitted under Section 6.12;
(iii) the disposition of property or assets as a result of a Recovery Event;
(iv) the sale, lease, transfer or other disposition of (A) machinery, parts and equipment no longer used or useful in the conduct of the business of the Borrower or any of its Subsidiaries and (B) property and assets located at or used in connection with, or which are otherwise associated with, restaurants that are not material to the business of any Credit Party;
(v) the sale, lease or transfer of property or assets between Credit Parties, so long as the Liens of the Administrative Agent with respect to such property or assets remain in full force and effect and fully perfected after giving effect to such transaction;
(vi) the dissolution, liquidation or winding up of a Liquor License Subsidiary or any sale, transfer or other disposition of assets from a Liquor License Subsidiary to a Credit Party or another Liquor License Subsidiary;
(vii) the sale, lease or transfer of the properties set forth on Schedule 2.8(b)(ii), and
(viii) the sale, lease or transfer of property or assets not to exceed $2,000,000 in the aggregate in any fiscal year and $10,000,000 in the aggregate during the term of this Agreement; provided, that in each case (other than inventory with respect to clause (v) above and dispositions of assets of a restaurant in connection with a refinishing, refurnishing or upgrade of such restaurant for consideration less than $100,000 in the ordinary course aggregate per restaurant) (A) at least 75% of business, including sales of inventory on consignment the consideration received therefor by any Credit Party or any such Subsidiary shall be in the ordinary course form of business)cash or Cash Equivalents, (B) after giving effect to the sale, lease, transfer or enter into other disposition of such property or assets and the repayment of Indebtedness (if any) with the proceeds thereof, the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.9 hereof and shall be in compliance with all other terms and conditions of this Agreement, and (C) no Event of Default shall exist or shall result from such sale, lease, transfer or other disposition of property or assets; provided, further, that with respect to any partnershipssale or transfer of property or assets permitted hereunder to an unrelated third party, joint ventures the Administrative Agent shall be entitled, without the consent of the Lenders or sale-leaseback transactionsthe Required Lenders, to release its Liens relating to the particular property or purchase assets sold; or
(b) (i) purchase, lease or otherwise acquire (in one a single transaction or a series of related transactions) any part all or substantially all of the property or assets or a majority of the Voting Stock of any Person (other than purchases or other acquisitions of inventory, materials goods, materials, property and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
as otherwise limited or prohibited herein) or (aii) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course any transaction of business with respect to real merger or personal property;
consolidation, except for (bA) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
Permitted Acquisitions, (cB) the advances, investments and loans or acquisitions permitted pursuant to Section 9.05;
6.6, and (dC) Holdings and its Subsidiaries may sell the merger or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of Credit Party with and into another Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is will be the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;corporation.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, and nor will not they permit any of their respective Subsidiaries Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidationaffairs, or conveysell, selltransfer, 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 (each a "Disposition"), except the following, without duplication, shall be expressly permitted:
(A) the sale, transfer, lease or other than inventory disposition of inventory, equipment and materials in the ordinary course of businessbusiness and (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(ii) the sale, including sales transfer or other disposition of inventory on consignment property or assets to an unrelated party not in the ordinary course of businessbusiness where and to the extent that they are the result of a Recovery Event or any taking under powers of eminent domain or by condemnation or similar proceedings;
(iii) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their Subsidiaries;
(iv) the sale, lease or transfer of property or assets from one Credit Party to another Credit Party or dissolution of any Credit Party (other than the Borrower) to the extent any and all assets of such Credit Party are distributed to another Credit Party;
(v) the termination of any Bank Product;
(vi) transactions permitted by Section 8.4(b) and transactions permitted by Section 8.10;
(vii) licenses of technology in the ordinary course of business (including, intercompany licensing of intellectual property between the Borrower and any Subsidiary and between Subsidiaries in connection with cost-sharing arrangements, distribution, marketing, make-sell or other similar arrangements);
(viii) any Subsidiary that is not a Credit Party may liquidate or dissolve if (A) the Borrower determines in good faith that such liquidation or dissolution is in the best interests of the Borrower, (B) such liquidation or enter into dissolution is not materially disadvantageous to the Lenders and (C) all assets of such liquidated or dissolved Subsidiary, after payment of all creditors of such Subsidiary, shall be conveyed to the Borrower or a Subsidiary;
(A) any partnershipsSubsidiary that is not a Credit Party may sell, joint ventures transfer, lease or otherwise dispose of its assets to any Credit Party or another Subsidiary that is not a Credit Party and (B) any Credit Party may sell, transfer, lease or otherwise dispose of its assets to a Subsidiary that is not a Credit Party in the ordinary course of business and at fair market value (as reasonably determined by the Borrower) or in an aggregate amount not to exceed $20,000,000 in any fiscal year of the Borrower;
(x) to the extent constituting a transfer or disposition, (A) the making of any Investment permitted pursuant to Section 8.5 and (B) the creation, incurrence or assumption of any Lien permitted under Section 8.2 shall be permitted;
(xi) the use, transfer or disposition of cash or Cash Equivalents in the ordinary course of business and in a manner that is not prohibited by the terms of this Agreement;
(xii) the Borrower and its applicable Subsidiaries may transfer to any Domestic Subsidiary any property acquired pursuant to a Permitted Acquisition to facilitate internal reorganizations or tax planning strategies;
(xiii) the settlement, waiver, release or surrender of claims or litigation rights of any kind;
(xiv) the transfer of improvements or alterations made by the Credit Parties and their Subsidiaries in connection with the lease of any real or personal property by the Credit Parties and their Subsidiaries; and
(xv) the sale-leaseback transactions, lease or purchase transfer of property or assets not to exceed 10% of Consolidated Assets (measured as of the end of the immediately preceding fiscal quarter) in the aggregate during the term of this Agreement; provided, however, that any sale, lease or transfer of property or assets pursuant to this clause (xv) shall not give rise to any Default as a result of a subsequent decline in Consolidated Assets; provided that after giving effect to any Disposition pursuant to clause (xv) above, (A) the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 7.9 hereof, recalculated for the most recently ended fiscal quarter for which information is available and (B) no Default or Event of Default shall exist or shall result therefrom; or
(b) (i) purchase, lease or otherwise acquire (in one a single transaction or a series of related transactions) any part all, or substantially all of the property or assets (of any Person or any line of business or enterprise, other than purchases Permitted Acquisitions and other Investments or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
8.5 or (dii) Holdings and its Subsidiaries may sell consummate of merger or discountconsolidation, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise except for (A) Investments or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, acquisitions permitted pursuant to Section 8.5 so long as if any Credit Party subject to such merger or consolidation, a Credit Party is the proceeds of each such sale surviving entity, (B) (y) the merger or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings Subsidiary that is not a Credit Party with and into a Credit Party; provided that such Credit Party will be the surviving entity and (z) the merger or any consolidation of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of a Credit Party with and into another Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is will be the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j)corporation, and (iiC) Holdings the merger or the Borrower shall have given the Agents consolidation of a Subsidiary that is not a Credit Party with and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice into another Subsidiary that is not a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Credit Party.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower will not, and will not permit any of their respective Subsidiaries to, wind up(a) dissolve, liquidate or dissolve wind up its affairs, Dispose of any of its property or assets in one transaction or a series of related transactions except the following, without duplication, shall be expressly permitted:
(i) Specified Sales, Dispositions effectuated by any transaction permitted under clause (b) below and Dispositions permitted under Section 8.10;
(ii) the Disposition of property or assets by a Credit Party to any other Credit Party (including, without limitation, as the result of any dissolution, liquidation or wind up of the affairs of any Subsidiary), and by any Subsidiary to a Credit Party (subject to the requirements of Section 8.7); or
(iii) other Dispositions of property or assets by the Borrower or any Subsidiary thereof; provided, that no Default or Event of Default shall be outstanding immediately prior to or after giving pro forma effect to the applicable Disposition; provided, further, that that the aggregate book value of all property and assets Disposed of in any fiscal year shall not exceed 5% of Consolidated Total Assets as determined as of the end of the immediately preceding fiscal year; (the “Disposition Threshold”); provided, further, that, the portion of the Disposition Threshold that is unused in any fiscal year may be carried forward to one or more future periods but in no fiscal year may the Disposition Threshold exceed 10% of the Consolidated Total Assets as determined as of the end of the immediately preceding fiscal year.
(b) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) all or any part of the property or assets of any Person other than purchases or other acquisitions of inventory, leases, materials, property, equipment and other assets in the ordinary course of business (except as otherwise limited or prohibited herein), 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as for (i) if investments or acquisitions constituting Permitted Investments and, subject to the transferee is a Subsidiarylimitations set forth in Section 8.10, such Subsidiary is a Guarantor and repurchases by any Credit Party of its outstanding capital stock, (ii) the security interests granted to the Collateral Agent for the benefit merger or consolidation of the Secured Creditors pursuant to the Security Documents any Credit Party with or into another Credit Party, provided that in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to any such transfer);
(h) any Wholly Owned Subsidiary of case the Borrower may merge (if party thereto) shall be the surviving entity, (iii) the merger or consolidation of any wholly-owned Subsidiary with and intoor into any other wholly-owned Subsidiary, (iv) the merger or be dissolved consolidation of any wholly-owned Subsidiary with or liquidated into, into the Borrower so long or another Credit Party provided that in any such case the Borrower or such other Credit Party, as applicable, shall be the surviving entity, (v) Permitted Acquisitions; provided, that aggregate consideration for all Permitted Acquisitions consummated during any fiscal year shall not exceed $25,000,000, and (vi) purchases, leases or acquisitions not constituting Permitted Acquisitions or transactions otherwise described in clauses (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and through (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(jv) so long as no Default or Event of Default then exists shall be outstanding immediately prior to or would result therefrom (including after giving pro forma effect to such the applicable purchase, lease or acquisition and --- ----- the aggregate book value of all property and assets purchased, leased or acquired in any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith fiscal year pursuant to this clause (vi) shall not exceed 5% of Consolidated Total Assets as if such acquisition had occurred and such Indebtedness had been incurred determined as of the first day end of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;immediately preceding fiscal year.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, nor will they permit any Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, or sell, transfer, lease or otherwise dispose of its property or assets (each a “Disposition”) or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:
(A) the sale, transfer, lease or other disposition of inventory and will materials in the ordinary course of business and (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(ii) the sale, transfer or other disposition of property or assets to an unrelated party not permit in the ordinary course of business where and to the extent that they are the result of a Recovery Event; to the extent Net Cash Proceeds from such Recovery Event are reinvested or used to make mandatory prepayments pursuant to Section 2.7(b)(v);
(iii) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their respective Subsidiaries toSubsidiaries;
(iv) the sale, wind uplease or transfer of property or assets from one Credit Party to another Credit Party or dissolution of any Credit Party (other than the Borrower) to the extent any and all assets of such Credit Party are distributed to another Credit Party;
(v) the termination of any Hedging Agreement;
(vi) the sale, liquidate lease, transfer, closure or dissolve other disposition of Restaurants, the termination or non-renewal of leases and Franchise Agreements or the subletting of Restaurants, in each case as determined to be prudent in the reasonable judgment of the senior officers of the Borrower;
(vii) Sale Leaseback transactions to the extent permitted under Section 6.12; and
(viii) the sale, lease or transfer of property or assets not to exceed $2,500,000 in the aggregate in any fiscal year; provided that (A) with respect to clauses (ii), (iii), (vi), (vii) and (viii) above, at least 75% of the consideration received therefor by the Credit Parties or any such Subsidiary shall be in the form of cash or Cash Equivalents, assets used in the business or Capital Stock, (B) after giving effect to any Disposition pursuant to clause (vii) above, the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.9 hereof, recalculated for the most recently ended fiscal quarter for which information is available and (C) with respect to clause (vii) above, no Default or Event of Default shall exist or shall result therefrom; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall, without the consent of any Lender, release its affairs Liens relating to the particular assets sold; or
(b) (i) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person, other than (A) Permitted Acquisitions, (B) the lease or acquisition of real property in connection with Permitted Construction Transactions and (C) except as otherwise limited or prohibited herein, purchases or other acquisitions of inventory, materials, property and equipment in the ordinary course of business, or (ii) enter into any transaction of merger or consolidation, except for (A) Investments 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, 6.5 so long as the proceeds of each Credit Party subject to such sale merger or exchange consolidation is used to acquire the surviving entity, (and results within 180 days of such sale B) (y) the merger or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings Subsidiary that is not a Credit Party with and into a Credit Party; provided that such Credit Party will be the surviving entity and (z) the merger or any consolidation of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of a Credit Party with and into another Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is will be the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j)corporation, and (iiC) Holdings the merger or the Borrower shall have given the Agents consolidation of a Subsidiary that is not a Credit Party with and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice into another Subsidiary that is not a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Credit Party.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower will not, and will not permit any of their respective Subsidiaries to, wind up(a) Dissolve, liquidate or dissolve its wind up their affairs or enter into any transaction of merger or consolidation; provided, or convey, sell, lease or otherwise dispose of however that (or agree to do any of the foregoing at any future time) all or any part of its property or assets (other than inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(ci) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries Borrower may sell merge or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection consolidate with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, any Subsidiary so long as the proceeds of each such sale Borrower shall be the continuing or exchange is used to acquire surviving corporation, (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(gii) any Wholly Owned domestic Subsidiary of the Borrower may transfer assets to be merged with or into any other domestic Subsidiary of the Borrower (iii) the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any other Person in connection with a Permitted Acquisition if the Borrower so long as or such Subsidiary shall be the continuing or surviving corporation.
(b) Make any Asset Dispositions (including, without limitation, any Sale Leaseback Transaction) other than (i) the Borrower is sale of inventory in the surviving corporation ordinary course of any such mergerbusiness for fair consideration, dissolution or liquidation and (ii) the security interests granted to sale or disposition of machinery and equipment no longer used or useful in the Collateral Agent conduct of Borrower's or any such Subsidiary's business, or (iii) such other Asset Dispositions, provided that (A) the consideration for such assets disposed of represents the benefit fair market value of such assets at the time of such Asset Disposition; and (B) the cumulative net book value of all Asset Dispositions by the Borrower and any of its Subsidiaries during any single fiscal year shall not exceed 15% of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred Consolidated Total Assets determined as of the first day end of the most recently completed Test Period fiscal year;
(including c) Acquire all or substantially all of the assets or business of any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate Person except in connection with a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and Each of the Borrower Credit Parties will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease or otherwise dispose of (its property or assets or agree to do any so at a future time except the following, without duplication, shall be expressly permitted:
(i) the sale, transfer, lease or other disposition of the foregoing at any future time) all or any part of its property or assets (other than inventory and materials in the ordinary course of business;
(ii) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(A) the disposition of property or assets as a direct result of a Recovery Event or (B) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Parent or any of its Subsidiaries (including dispositions by Subsidiaries in connection with ceasing operations), so long as the net proceeds therefrom are used to prepay the Loans in accordance with the terms of Section 2.7(b)(ii) or to replace such machinery, parts and equipment or to purchase or otherwise acquire new assets or property in accordance with the terms of such Section;
(iv) the sale, lease or transfer of property or assets between the Borrower and any Guarantor;
(v) the sale, lease or transfer of property or assets from a Credit Party other than the Borrower to another Credit Party;
(vi) the voluntary termination of Hedging Agreements;
(vii) the transfer of assets pursuant to Permitted Investments;
(viii) the liquidation of any Subsidiary of the Borrower into the Borrower or the liquidation of any Subsidiary of the Parent (other than the Borrower) into any other Subsidiary (provided, that if one of such Subsidiaries is a Guarantor, such Guarantor shall be the surviving entity);
(ix) the sale, lease or transfer of property or assets not to exceed $5,000,000 in the aggregate in any fiscal year; provided, that, in the case of clause (ix) above, at least 75% of the consideration received therefor by the Borrower or any other Credit Party is in the form of cash or Cash Equivalents; provided, further, that with respect to sales of inventory on consignment in assets permitted hereunder only, the ordinary course Administrative Agent shall be entitled, without the consent of business)the Required Lenders, or enter into any partnershipsto release its Liens relating to the particular assets sold; or
(b) (i) purchase, joint ventures or sale-leaseback transactions, or purchase lease or otherwise acquire (in one a single transaction or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, materials leases, materials, property and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
as otherwise limited or prohibited herein) or (aii) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course any transaction of business with respect to real merger or personal property;
consolidation, except for (bA) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans or acquisitions permitted pursuant to Section 9.05;
6.5, (dB) Holdings and its Subsidiaries may sell the merger or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings Credit Party with and into another Credit Party; provided that if the Borrower is a party thereto, the Borrower will be the surviving corporation and (C) the merger or consolidation of any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to Parent (other than the Borrower or to any other Wholly Owned Borrower) with and into a Subsidiary of the Parent (other than the Borrower); provided, so long as (i) that if the transferee a Guarantor is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is Guarantor will be the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;corporation.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and Each of the Borrower Borrowers will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, wind up:
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease to a third party 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 or agree to do so at a future time except the following, without duplication, shall be expressly permitted:
(i) Specified Sales;
(ii) the disposition of property or assets as a result of a Recovery Event;
(iii) the termination of any Hedging Agreement permitted pursuant to Section 6.1;
(iv) the sale, lease, transfer or other than inventory disposition of property and assets no longer used or useful in the conduct of the business of the Borrower or any of its Subsidiaries (including the disposition of superfluous, obsolete or uneconomic property and/or assets acquired in connection with any Permitted Acquisition, subject to the provisions of Section 2.8(b)(ii));
(v) the sale, lease or transfer of property or assets between Borrowers, so long as the Liens of the Administrative Agent for the ratable benefit of the Lenders with respect to such property or assets remain in full force and effect and fully perfected after giving effect to such transaction and the attachment and priority of such Liens remains unchanged;
(vi) the sale, lease or transfer of property or assets (in addition to that permitted by clause (iv) above) not to exceed $2,000,000 in the aggregate in any fiscal year and $5,000,000 in the aggregate during the term of this Agreement; and
(vii) the sale, grant or transfer of licenses and sublicenses in the ordinary course of business; provided, including sales that in each case (other than with respect to clause (v) above) (A) at least 50% of inventory on consignment the consideration received therefor by any Borrower or any such Subsidiary shall be in the ordinary course form of business)cash or Cash Equivalents, (B) after giving effect to the sale, lease, transfer or enter into other disposition of such property or assets and the repayment of Indebtedness (if any) with the proceeds thereof, the Borrowers shall be in compliance on a pro forma basis with the financial covenants set forth in Section 5.9 hereof and shall be in compliance with all other terms and conditions of this Agreement, and (C) no Event of Default shall exist or shall result from such sale, lease, transfer or other disposition of property or assets; provided, further, that with respect to any partnershipssale or transfer of property or assets permitted hereunder to an unrelated third party, joint ventures the Administrative Agent shall be entitled, without the consent of the Lenders or sale-leaseback transactionsthe Required Lenders, to release its Liens relating to the particular property or purchase assets sold; or
(b) (i) purchase, lease or otherwise acquire (in one a single transaction or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, materials materials, property, equipment and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising intellectual property in the ordinary course of business, but only in connection with the compromise except as otherwise limited or collection thereof;
(eprohibited herein) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent enter into any transaction of merger or consolidation, except for the benefit of the Secured Creditors (A) investments or acquisitions (including Permitted Acquisitions) permitted pursuant to Section 6.5, (B) the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary merger or consolidation of the a Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisitioninto another Borrower; provided that (i) Holdings shall have -------- delivered to if the Administrative AgentParent Borrower is a party thereto, at the time of delivery of Parent Borrower will be the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j)surviving corporation, and (iiC) Holdings or the Borrower shall have given the Agents Shenandoah Acquisition and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;transactions related thereto.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and Each of the Borrower Credit Parties will not, and nor will not it permit any of their respective Subsidiaries Subsidiary to, wind up:
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidation, or conveyaffairs, sell, transfer, lease or otherwise dispose of (its property or assets or agree to do any so at a future time except the following, without duplication, shall be expressly permitted:
(i) Specified Sales;
(ii) the sale, transfer, lease or other disposition of the foregoing at any future time) all or any part of its property or assets (other than inventory A) to an unrelated party not in the ordinary course of businessbusiness (other than Specified Sales), including where and to the extent that they are the result of a Recovery Event or (B) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their Subsidiaries, as appropriate, in its reasonable discretion;
(iii) the sale, lease or transfer of property or assets from (x) any Credit Party that is a Domestic Guarantor or the Company to another Credit Party that is a Domestic Guarantor or the Company or (y) from Alliance AG or any of its Subsidiaries to the Dutch Borrower (so long as the Dutch Borrower does not pay more than fair value);
(iv) the sale, lease, transfer or other disposition of property or assets (x) from any Foreign Subsidiary which is not the Dutch Borrower, Alliance AG or a Pledged Foreign Subsidiary, to the Company or any of its wholly owned Subsidiaries (other than directors’ qualifying shares and/or other nominal amounts of shares required to be held by local nationals, in each case to the extent required by applicable law), at less than or equal to fair value, (y) between Pledged Foreign Subsidiaries which are wholly owned Subsidiaries (other than directors’ qualifying shares and/or other nominal amounts of shares required to be held by local nationals, in each case to the extent required by applicable law) of the Dutch Borrower or (z) from any Pledged Foreign Subsidiaries which are Subsidiaries of the Dutch Borrower (other than Alliance AG) to any Foreign Subsidiary which is a Subsidiary of the Dutch Borrower (other than Alliance AG or a Pledged Foreign Subsidiary) (at fair value) in an aggregate amount not to exceed $40,000,000 in any fiscal year;
(v) (A) the sale of accounts receivable in accordance with the terms of Section 6.1(g) and (B) the sale of accounts receivable arising from sales of inventory on consignment tobacco, which accounts receivable are sold pursuant to a factoring arrangement without recourse;
(vi) the sale, lease or transfer of obsolete, worn out, surplus, redundant or excess property or assets in the ordinary course of businessbusiness (other than machinery, parts and equipment disposed of in accordance with clause (ii) above), or enter into any partnershipsagreement to do so at a future time;
(vii) the dissolution, joint ventures liquidation or winding up of a Foreign Subsidiary or a Domestic Subsidiary other than a Borrower, Alliance AG, a Domestic Guarantor or a Pledged Foreign Subsidiary, if the Company determines in good faith that such a dissolution, liquidation or winding up is in the best interests of the Credit Parties and is not materially disadvantageous to the Lenders;
(viii) the sale-leaseback transactions, lease or transfer of additional property or assets, or purchase agreement to do so at a future time in an amount not to exceed $35,000,000 in the aggregate in any fiscal year;
(ix) the sale of any property permitted to be sold pursuant to Section 6.12; and
(x) the sale of up to 51% of the Capital Stock in the aggregate of China Brasil Tabacos Exportadora Ltda. to China Tabaco International do Brasil Ltda. and its Affiliates so long as (v) no Default or Event of Default then exists or would result therefrom, (w) each such sale is in an arm’s-length transaction and the Company or the respective Subsidiary receives at least Fair Market Value, (x) the consideration received by the Company or such Subsidiary consists of at least 90% cash and is paid at the time of the closing of such sale, (y) the Net Cash Proceeds therefrom are applied and/or reinvested as (and to the extent) required by Section 2.6(b)(ii) and (z) the aggregate amount of the cash and non-cash proceeds received from all assets sold pursuant to this clause (x) shall not exceed $20,000,000 in any fiscal year of the Borrower (for this purpose, using the Fair Market Value of property other than cash).
(b) purchase, lease or otherwise acquire (in one a single transaction or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, materials leases, materials, property and equipment in the ordinary course of business), except as permitted pursuant to Sections 6.4(a) of and 6.5.
(c) notwithstanding the provisions in Section 6.4(a) and Section 6.4(b), merge with or into any other Person, except that the following shall be permitted:
(ai) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to merge with another Person if (A) such Borrower is the Borrower or to any other Wholly Owned Subsidiary of the Borrowersurviving entity, so long as (iB) if the transferee such merger involves a Person that is not a Subsidiary, such Subsidiary merger is a Guarantor Permitted Acquisition, and (iiC) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and immediately after giving effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and intomerger on a Pro Forma Basis, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists shall have occurred and be continuing; and
(ii) any Subsidiary may merge with or would result therefrom into or sell or otherwise transfer all or substantially all of its business, properties and assets to the Company or to another Subsidiary (including determined immediately thereafter); provided that (A) if such merger, sale or other transfer involves a Borrower, such Borrower shall be the surviving entity, (B) if such merger, sale or other transfer involves a Guarantor (but not a Borrower), such Guarantor shall either be the surviving entity or the surviving entity shall become an Additional Credit Party in connection therewith, (C) if such merger, sale or other transfer involves a Pledged Foreign Subsidiary, either the surviving entity shall be a Pledged Foreign Subsidiary or the Capital Stock of the surviving entity shall be pledged to the Administrative Agent in connection therewith pursuant to a Pledge Agreement on terms reasonably satisfactory to the Administrative Agent, (D) immediately after giving pro forma effect to such acquisition merger, sale or other transfer on a Pro Forma Basis, no Default or Event of Default shall have occurred and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as be continuing and (E) if such acquisition had occurred and merger, sale or other transfer involves a Person that is not a Subsidiary immediately prior to the consummation of such Indebtedness had been incurred transaction, such merger, sale, lease or other transfer shall qualify as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided further that (i1) Holdings neither the Dutch Borrower nor Alliance AG shall have -------- delivered to the Administrative Agentmerge with or into, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with or sell or transfer all or substantially all of its assets to, the provisions Company or any Domestic Subsidiary and (2) the Dutch Borrower and Alliance AG shall not merge with or into, or sell or transfer all or substantially all of this paragraph its assets to, each other and (j), and 3) no transaction shall be permitted pursuant to preceding clause (ii) Holdings or which could be reasonably expected to be adverse to the Borrower shall have given the Agents Lenders (including without limitation as to their structural position and the Banks at least 30 days prior notice of any Permitted Acquisition claims (each such notice a "Permitted Acquisition Notice"direct and indirect); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;respect.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Alliance One International, Inc.)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower will not, and will not permit any of their respective Subsidiaries to, wind up, liquidate or dissolve its affairs affairs, or enter into any transaction of merger or consolidation, sell or conveyotherwise dispose of all or any part of its property or assets, sellor enter into any sale-leaseback transactions, or purchase, lease or otherwise dispose acquire (in one transaction or a series of (related transactions) all or any part of the property or assets of any Person or agree to do any of the foregoing at any future time) all or any part of its property or assets (other than inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or sale-leaseback transactions, or purchase or otherwise acquire (in one or time pursuant to a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Personbinding agreement, except that the following shall be permitted:
(a) Holdings (i) Capital Expenditures made by the Borrower and its Domestic Subsidiaries mayand Canadian Subsidiaries (including the purchase of assets in the form of additional Rental Equipment) to the extent within the limitations set forth in Section 8.4 and (ii) Capital Expenditures made by the Borrower’s Non-Canadian Foreign Subsidiaries;
(b) the investments, acquisitions and transfers or dispositions of properties permitted pursuant to Section 8.5 and Dividends permitted pursuant to Section 8.6;
(i) any Domestic Subsidiary of the Borrower (excluding the Unit Subsidiary) may be merged or consolidated with or into, or be liquidated into, the Borrower or any Wholly-Owned Domestic Subsidiary of the Borrower (excluding the Unit Subsidiary) (so long as lessee the Borrower or lessorsuch Wholly-Owned Domestic Subsidiary of the Borrower is the surviving corporation), enter into operating leases or all or any part of the business, properties and assets of any Domestic Subsidiary of the Borrower (excluding the Unit Subsidiary) may be conveyed, leased, sold or transferred to the Borrower or any Wholly-Owned Domestic Subsidiary of the Borrower (excluding the Unit Subsidiary except as required by this Credit Agreement), (ii) any Canadian Subsidiary of the Borrower may be merged or consolidated with or into, or be liquidated into, any Wholly-Owned Canadian Subsidiary of the Borrower (so long as such Wholly-Owned Canadian Subsidiary is the surviving corporation), or all or any part of the business, properties and assets of any Canadian Subsidiary of the Borrower may be conveyed, leased, sold or transferred to any Wholly-Owned Canadian Subsidiary of the Borrower or to the Borrower, (iii) any Non-Canadian Foreign Subsidiary may be merged or consolidated with or into, or be liquidated into, any Non-Canadian Foreign Subsidiary that is a Wholly-Owned Subsidiary (so long as such Wholly-Owned Subsidiary is the surviving corporation), or all or any part of the business, properties and assets of any Non-Canadian Foreign Subsidiary may be conveyed, leased, sold or transferred to any Non-Canadian Foreign Subsidiary that is a Wholly-Owned Subsidiary and (iv) all or any part of the capital stock of, or the business, property and assets of, any Foreign Subsidiary of the Borrower may be transferred (by way of Dividend) to the Borrower;
(d) the sale, lease or disposal to third parties (not Holdings or any Subsidiary thereof) in the ordinary course of business with respect to real of Inventory and Rental Equipment and the purchase, lease or personal property;
other acquisition from third parties (bnot Holdings or any Subsidiary thereof) Capital Expenditures by Holdings of equipment, Inventory and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising Rental Equipment in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used other disposition to acquire third parties (and results within 180 days not Holdings or any Subsidiary thereof) of such sale obsolete or exchange excess equipment in the acquisition of) replacement items ordinary course of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchangedbusiness;
(f) Holdings operating leases (and other leases or subleases) of property entered into or terminated in the ordinary course of business; provided that to the extent that any such lease or sublease, as the case may be, constitutes a Capital Lease, such lease or sublease, as the case may be, shall be permitted to be entered into under this Section 8.1(f) only if also permitted to be entered into under Section 8.3(b);
(g) sales and leases to the Borrower of Non-Qualified Units from time to time held by the Unit Subsidiary pursuant to the Master Lease Agreements, provided that in the case of any such sale the respective Non-Qualified Units are contemporaneously sold to a third party as provided in Section 8.1(d);
(h) the sale or return of automobiles and trucks which the Borrower and its Subsidiaries customarily replace periodically with substitute automobiles and trucks in the ordinary course of business;
(i) the Borrower or any Subsidiary may, in the ordinary course of business, licenseenter into licensing agreements with Persons for the use of intellectual property or other intangible assets, as licensor and settlements, permissions, consents to use, and similar arrangements concerning intellectual property or licenseeother intangible assets, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as provided that in the case of any such agreements, settlements, permissions, consents and similar arrangements to which any Credit Party is a party, such Credit Party uses reasonable commercial efforts to procure that each such license by Holdings or its Subsidiaries in its capacity as licensor other agreements is permitted to be assigned pursuant to the respective Security Agreement (to the extent that which such Credit Party is a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) party and does not otherwise prohibit the granting of a Lien therein by Holdings or any of its Subsidiaries the respective Credit Party pursuant to such Security Agreement; provided, further, that notwithstanding anything to the contrary contained in this Section 8.1, the Borrower shall be permitted to license trade names and related intellectual property pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation)Trade Name License Agreement;
(j) the abandonment or other disposition of intellectual property and other property that is, in the reasonable judgment of the Person owning such intellectual property and other property, no longer economically practicable to maintain or useful in the conduct of the business of such Person;
(k) the sale of (i) approximately 7 acres located at Xxxxxxx Xxxx xxxx xx Xxxxx 00, Xxxxxx, Xxx Xxxxxx, (xx) approximately 2 acres located at 4015 Xxxxxxx NE, Albuquerque, New Mexico, and (iii) approximately 6.5 acres located at 0000 Xxxxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxx;
(l) in connection with the sale of any Rental Equipment to a third party as permitted by clause (d) above, the sale of Leases and conditional sales contracts relating to such Rental Equipment, in each case, in the ordinary course of business for fair market value to third parties; provided that in no event is any such sale with any recourse to the seller of such leases and/or conditional sales contracts except for (i) usual and customary warranties in connection with the sale of the respective Rental Equipment or (ii) guaranties of the residual value of such Leases so long as no Default or Event the amount of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as guarantees of the first day type described above in this clause (ii) (calculated taking the maximum potential liability thereunder) at no time outstanding exceeds $5,000,000 in the aggregate;
(m) any Permitted Acquisitions (so long as the applicable requirements set forth in the definition of the most recently completed Test Period “Permitted Acquisitions” and in Section 7.17 are satisfied);
(including any n) sales or other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent dispositions of assets to such Test Period)), third parties (not Holdings or any Subsidiary thereof), in addition to the sales or dispositions permitted by the foregoing clauses (a) through (n), for fair market value not to exceed $5,000,000 in a fiscal year of the Borrower or $25,000,000 in the aggregate since the Effective Date; provided, however, that the Net Sale Proceeds therefrom are applied to the repayment of outstanding Loans to the extent required by Section 2.5(j);
(o) the Credit Agreement Parties may enter into agreements to effect transactions which would result in a Change of Control on the terms and conditions set forth on Schedule XIII;
(p) the Borrower and its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that make the following sales and dispositions of Rental Equipment if in the ordinary course of business: (i) Holdings shall have -------- delivered if any Rental Equipment is being moved in the ordinary course of business from the United States of America or a State thereof to Canada or a Qualified Canadian Jurisdiction (for use in said jurisdiction), the Borrower or the respective Qualified Credit Party which owns such Rental Equipment may sell or transfer the respective Rental Equipment to a Canadian Subsidiary Guarantor, (ii) if any Rental Equipment is being moved in the ordinary course of business from Canada or a province thereof to the Administrative AgentUnited States of America or a State thereof, at the time respective Canadian Subsidiary which owns such Rental Equipment may sell or transfer the respective Rental Equipment to the Borrower (which shall transfer same to the Unit Subsidiary if, and to the extent, required by Section 7.18) or the Unit Subsidiary and (iii) Non-Canadian Foreign Subsidiaries may sell or transfer assets to any other Non-Canadian Foreign Subsidiary which is a Wholly-Owned Subsidiary; and
(q) sales or contributions of delivery Rental Equipment by the Borrower or any Domestic Subsidiary of the Permitted Acquisition NoticeBorrower to Xxxxxxxx Scotsman Mexico, a certificate S. de X.X. de C.V. or WS Servicios de Mexico S. de X.X. de C.V. or their respective Subsidiaries (and contributions to such entities of accounts receivable resulting from such sales or forgiveness of such accounts receivable) in an aggregate amount not to exceed $5,000,000 in any fiscal year of the Chief Financial Officer Borrower. Notwithstanding anything to the contrary contained above, (x) in no event shall Holdings or the Borrower sell or otherwise dispose, or permit any of Holdings showing compliance their respective Subsidiaries to sell or otherwise dispose, of any of their interests in any Subsidiary except as expressly permitted pursuant to preceding Section 8.1(c) and Section 8.6(i), (y) in reasonable detail as no event shall the Unit Subsidiary be merged with or into or consolidated with or into any other Person or be liquidated and (z) in no event shall the Unit Subsidiary transfer any Non-Qualified Units or any interest therein (except (i) for the sale or lease thereof pursuant to pro forma calculationsthe Master Lease Agreements, provided that in the case of any such sale the respective Non-Qualified Units are contemporaneously sold to a third party pursuant to Section 8.1(d) with all or (ii) pursuant to Section 8.1(q)) to Holdings, the Borrower or any of their other Subsidiaries or any other Person. To the extent the Required Lenders waive the provisions of this paragraph Section 8.1 with respect to the sale of any Collateral, or any Collateral is sold or transferred (jby dividend, contribution or otherwise) as permitted by this Section 8.1, such Collateral in each case (so long as the Collateral is not being sold or transferred to Holdings (other than cash distributed to Holdings in accordance with the terms of this Credit Agreement), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its the Borrower’s Domestic Subsidiaries or Canadian Subsidiaries and Section 2.5(j), to third Persons not interfering the extent applicable, is complied with as to such Collateral) shall be sold or transferred free and clear of the Liens in any material respect with favor of the business of Holdings Collateral Agent and the Lenders created by the Collateral Documents and the Collateral Agent shall take such actions as it deems appropriate in connection therewith or any of its Subsidiaries;may be reasonably requested by the Borrower to evidence such Lien release, in each case at the Borrower’s expense.
Appears in 1 contract
Samples: Credit Agreement (Williams Scotsman International Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, nor will they permit any Subsidiary to,
(a) dissolve or liquidate or sell, transfer, lease or otherwise dispose of its property or assets or agree to do so at a future time (other than agreements to dispose of property or assets with a fair market value less than $1,000,000 individually or $5,000,000 in the aggregate during the term of this Agreement), except the following, without duplication, shall be expressly permitted:
(i) (A) the sale, transfer, lease, sublease or other disposition of property in the ordinary course of business; (B) the conversion of cash into Cash Equivalents and will not permit Permitted Cash Collateral and the conversions from one type of Permitted Cash Collateral into another type of Permitted Cash Collateral in compliance with the provisions hereof and (C) the licensing out of intellectual property and other rights;
(ii) Recovery Events for which such Credit Party or such Subsidiary has received any cash insurance proceeds or condemnation or expropriation award with respect to such property or assets to the extent Net Cash Proceeds from such Recovery Event are used to make mandatory prepayments or reinvested pursuant to Section 2.5(b)(vi);
(iii) the sale, lease, sublease, transfer or other disposition of property, machinery, parts and equipment and other goods no longer used or useful in, or consistent with the Borrower’s plans for, the conduct of the business of the Credit Parties or any of their respective Subsidiaries toSubsidiaries;
(iv) the sale, wind uplease or transfer of property or assets from the Borrower or any Subsidiary to a Credit Party or from one Credit Party to another Credit Party or from any Subsidiary that is not a Credit Party to any other Subsidiary that is not a Credit Party;
(v) the termination of any Hedging Agreement;
(vi) the sale of Permitted Cash Collateral; provided, liquidate that the Borrower shall comply with the provisions of Section 2.5(b)(v) with respect to the proceeds of such sale to the extent applicable;
(vii) the liquidation or dissolve dissolution of any Subsidiary that is not a Credit Party if the assets of such Subsidiary are transferred to a Credit Party after the repayment of all Indebtedness and other obligations of such Subsidiary upon liquidation or dissolution;
(viii) the disposition of any property or assets for purposes of making a Permitted Investment; and
(ix) the sale, lease or transfer of property or assets not to exceed $10,000,000 in net cash proceeds in the aggregate during the term of the Agreement; provided that (A) with respect to clauses (i)(A), (ii), (iii) and (ix) above, except for transactions involving assets with a fair market value (as determined by a Responsible Officer) not exceeding $2,000,000 in any fiscal year, at least 75% of the consideration received therefor by the Credit Parties or any such Subsidiary shall be in the form of cash or Cash Equivalents, (B) with respect to clause (vi) above, 100% of the consideration received therefor by the Credit Parties shall be Permitted Cash Collateral, (C) after giving effect to any Asset Disposition pursuant to clause (ix) above, the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.9 hereof, recalculated for the most recently ended quarter for which information is available, and (D) no Default or Event of Default shall exist or shall result therefrom; provided, further, that with respect to dispositions of assets permitted hereunder only, the Administrative Agent shall be entitled, without the consent of any Lender, to release its affairs Liens relating to the particular assets sold; or
(b) (i) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) all or substantially all of the property or assets of any Person, other than (A) Permitted Acquisitions and (B) except as otherwise limited or prohibited herein, purchases or other acquisitions of inventory, materials, property and equipment in the ordinary course of business, or (ii) enter into any transaction of merger or consolidation, except for (A) in connection with Investments 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, 6.5 so long as the proceeds of each Credit Party subject to such sale merger or exchange consolidation is used to acquire (and results within 180 days of such sale the surviving entity or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent surviving entity will become a Credit Party concurrently with effectiveness of the item of equipment so sold merger or exchanged;
consolidation, (fB) Holdings and its Subsidiaries may, in (y) the ordinary course of business, license, as licensor merger or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings Subsidiary that is not a Credit Party with and into a Credit Party; provided that such Credit Party will be the surviving entity and (z) the merger or any consolidation of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of a Credit Party with and into another Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as will be the surviving corporation, (iC) the Borrower merger or consolidation of a Subsidiary that is the surviving corporation of any such merger, dissolution or liquidation not a Credit Party with and into another Subsidiary that is not a Credit Party and (iiD) any merger or consolidation, the security interests granted purpose or effect of which is to the Collateral Agent for the benefit of the Secured Creditors effect, all or in part, a disposition permitted pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution Section 6.4(a) or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors an Investment permitted pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Section 6.5.
Appears in 1 contract
Samples: Credit Agreement (Eclipsys Corp)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, and nor will not they permit any of their respective Subsidiaries Subsidiary to, wind up,
(a) dissolve, liquidate or dissolve wind up its affairs or enter into any transaction of merger or consolidationaffairs, or conveysell, selltransfer, 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 (each a “Disposition”) or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:
(A) the sale, transfer, lease or other than disposition of inventory and materials in the ordinary course of business and (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(ii) the sale, transfer or other disposition of property or assets to an unrelated party not in the ordinary course of business where and to the extent that they are the result of a Recovery Event;
(iii) the sale, lease, transfer or other disposition of (A) machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their Subsidiaries and (B) obsolete or worn out property, whether now owned or hereafter acquired, in the ordinary course of business;
(iv) the sale, including sales lease or transfer of inventory on consignment property or assets from one Credit Party to another Credit Party or dissolution of any Credit Party to the extent any and all assets are distributed to another Credit Party;
(v) the termination of any Hedging Agreement;
(vi) Dispositions of equipment or real property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property within twelve (12) months of such Disposition or (B) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property within 12 months of such Disposition;
(vii) the licensing of Intellectual Property in the ordinary course of businessbusiness consistent with past practice;
(viii) the sale, lease or transfer of property or assets not to exceed $40,000,000 in the aggregate in any fiscal year;
(ix) the sale, lease or transfer of property or assets as part of a Sale and Leaseback Transaction, in an aggregate amount not to exceed $40,000,000 during the term of this Agreement; and
(x) the merger of a Credit Party or a Subsidiary thereof with another Credit Party or a Subsidiary thereof to the extent permitted by Section 6.4(b)(ii) below; provided that (A) after giving effect to any Disposition pursuant to clause (viii) above, the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.9 hereof, recalculated for the most recently ended month for which information is available, and (B) with respect to clauses (v), (vi) and (viii) above, no Default or enter into any partnershipsEvent of Default shall exist or shall result therefrom; or
(b) (i) purchase, joint ventures or sale-leaseback transactions, or purchase lease or otherwise acquire (in one a single transaction or a series of related transactions) any part of the property or assets (of any Person, other than (A) Permitted Investments and (B) except as otherwise limited or prohibited herein, purchases or other acquisitions of inventory, materials materials, property and equipment in the ordinary course of business, or (ii) consummate any transaction of any Personmerger or consolidation, except that the following shall be permitted:
for (aA) Holdings and its Subsidiaries may, as lessee Investments or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans acquisitions permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, 6.5 so long as the proceeds of each Credit Party subject to such sale merger or exchange consolidation is used to acquire the surviving entity, (and results within 180 days of such sale B) (y) the merger or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings Subsidiary that is not a Credit Party with and into a Credit Party; provided that such Credit Party will be the surviving entity and (z) the merger or any consolidation of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of a Credit Party with and into another Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is will be the surviving corporation of any such merger, dissolution or liquidation and (iiC) the security interests granted to the Collateral Agent for the benefit merger or consolidation of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned a Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge that is not a Credit Party with and into, or be dissolved or liquidated into, any Wholly Owned into another Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary that is not a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j), and (ii) Holdings or the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Credit Party.
Appears in 1 contract
Samples: Credit Agreement (Mednax, Inc.)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, nor will they permit any Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, or sell, transfer, lease or otherwise dispose of its property or assets or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:
(A) the sale, transfer, lease or other disposition of inventory and will not permit materials in the ordinary course of business and (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(ii) Dispositions resulting in Extraordinary Receipts for which such Credit Party or such Subsidiary has received any cash insurance proceeds or condemnation or expropriation award with respect to such property or assets;
(iii) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their respective Subsidiaries toSubsidiaries;
(iv) (A) the sale, wind uplease or transfer of property or assets from one Credit Party to another Credit Party, liquidate (B) the sale, lease or dissolve transfer of property or assets from a Subsidiary to a Credit Party, (C) the sale, lease or transfer of property or assets from a Subsidiary that is not a Credit Party to another Subsidiary that is not a Credit Party, (D) the dissolution of any Credit Party to the extent any and all assets of such Credit Party at the time of such dissolution are distributed to another Credit Party, (E) the dissolution of a Subsidiary that is not a Credit Party to the extent any and all assets of such Subsidiary at the time of such dissolution are distributed to another Subsidiary;
(v) the termination of any Hedging Agreement;
(vi) the sale, lease or transfer of property or assets not to exceed the greater of, in any fiscal year, (i) $100,000,000 and (ii) 7.5% of Consolidated Total Tangible Assets, excluding transfers made pursuant to Sections 6.4(a)(iv) and (ix);
(vii) the dissolution, liquidation or winding up of the affairs of, or the sale, transfer, lease or other disposition of the property or assets of, any Subsidiary in connection with the Permitted Reorganization;
(viii) sale leaseback transactions to the extent permitted pursuant to Section 6.12; and
(ix) the sale, transfer, lease or other disposition of any lines of business or business units identified to the Lenders prior to the Seventh Amendment Effective Date. provided that (A) with respect to clauses (i)(A), (ii), (iii), (vi) and (viii) above, at least 75% of the consideration received therefor by the Credit Parties or any such Subsidiary shall be in the form of cash or Cash Equivalents, (B) after giving effect to any disposition pursuant to clause (vi) or (ix) above, the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenants set forth in Section 5.9 hereof, recalculated for the most recently ended month for which information is available, and (C) with respect to clauses (iv), (v), (vi), (viii) and (ix) above, no Default or Event of Default shall exist or shall result therefrom; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall be entitled, without the consent of any Lender, to release its affairs Liens relating to the particular assets sold; or
(b) (i) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person, other than (A) Permitted Acquisitions and Permitted Investments and (B) except as otherwise limited or prohibited herein, purchases or other acquisitions of inventory, materials, property and equipment in the ordinary course of business, or (ii) enter into any transaction of merger or consolidation, except for (A) Investments 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
(d) Holdings and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, 6.5 so long as the proceeds of each Credit Party subject to such sale merger or exchange consolidation is used to acquire the surviving entity, (and results within 180 days of such sale B) (y) the merger or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings Subsidiary that is not a Credit Party with and into a Credit Party; provided that such Credit Party will be the surviving entity and (z) the merger or any consolidation of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of a Credit Party with and into another Credit Party; provided that if the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated intoparty thereto, the Borrower so long as (i) the Borrower is will be the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all of the provisions of this paragraph (j)corporation, and (iiC) Holdings the merger or consolidation of a Subsidiary that is not a Credit Party with and into another Subsidiary that is not a Credit Party. For avoidance of doubt, an issuance by the Borrower shall have given the Agents and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons Equity Interests shall not interfering in any material respect with the business of Holdings or any of its Subsidiaries;be prohibited by this Section 6.4.
Appears in 1 contract
Samples: Credit Agreement (Osi Systems Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Credit Parties will not, nor will they permit any Restricted Subsidiary to,
(a) dissolve, liquidate or wind up its affairs, or sell, transfer, lease or otherwise dispose of its property or assets or agree to do so at a future time, except the following, without duplication, shall be expressly permitted:
(i) any Restricted Subsidiary of the Company may be liquidated, wound up or dissolved, and will not permit all or any part of its business, property or assets may be conveyed, sold, leased, transferred or otherwise disposed of to any Credit Party;
(A) the sale, transfer, lease or other disposition of inventory and materials in the ordinary course of business and (B) the conversion of cash into Cash Equivalents and Cash Equivalents into cash;
(iii) Recovery Events;
(iv) the sale, lease, transfer or other disposition of machinery, parts and equipment no longer used or useful in the conduct of the business of the Credit Parties or any of their respective Restricted Subsidiaries;
(v) the sale, lease or transfer of property or assets from a Credit Party to another Credit Party;
(vi) in order to resolve disputes that occur in the ordinary course of business, Holdco and its Restricted Subsidiaries tomay discount or otherwise compromise for less than the face value thereof, wind upnotes or accounts receivable;
(vii) Holdco and its Restricted Subsidiaries may sell or dispose of shares of Capital Stock of any of its Subsidiaries in order to qualify members of the Governing Body of such Subsidiary if required by applicable law;
(viii) the grant by Holdco or any of its Restricted Subsidiaries in the ordinary course of business of a license to any Person for the use of any Intellectual Property owned by Holdco or any of its Restricted Subsidiaries;
(ix) the unwinding of any derivative instruments or agreements;
(x) the sale or disposition of Investments under clauses (f), liquidate (j), (k) and (n) of the definition of Permitted Investments (other than Investments received in connection with any Asset Disposition permitted by subsection (xv) below);
(xi) the sublease of any real or dissolve personal property in the ordinary course of business;
(xii) sales, assignments, transfers or dispositions of accounts receivable in the ordinary course of business for purposes of collection;
(xiii) the sale of the real property and improvements located at 0 Xxxx Xxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxxxx; provided that if such sale is not consummated within ninety (90) days after the Effective Date, the applicable Credit Party shall execute and deliver to the Administrative Agent an amendment to the Mortgage Instrument with respect to such property in form and substance reasonably satisfactory to the Administrative Agent; [Intentionally Omitted];
(xiv) the sale, lease or transfer of any property or assets acquired pursuant to a Permitted Acquisition or contributed to a Credit Party by the Parent at any time after the Effective Date; or
(xv) sales of revenue-producing assets (or of all of the outstanding Capital Stock of a Subsidiary that owns such assets):
(A) to the extent the Attributable Revenues of all such assets (and Subsidiaries) transferred in all such asset sales during any period of 365 consecutive days does not exceed 16.5% of Pro Forma Revenues for the most recent four fiscal quarter period for which Pro Forma Revenues can then be determined; provided that (1) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof and (2) the proceeds of such asset sales shall be applied as required by subsection 2.9(b)(iii); or
(B) to the extent the Attributable Revenues of all assets (and Subsidiaries) transferred in all such asset sales during any period of 365 consecutive days exceeds 16.5% but does not exceed 33% of Pro Forma Revenues for the most recent four fiscal quarter period for which Pro Forma Revenues can then be determined; provided that (1) the consideration received for such assets shall be in an amount at least equal to the fair market value thereof, (2) the consideration received in connection with all asset sales made pursuant to this clause (B), when added to the consideration received in connection with all asset sales made pursuant to clause (A) above, shall be not less than a multiple of 7 times the Attributable EBITDA of all assets (and Subsidiaries) transferred in all such asset sales in the aggregate during such 365-day period and (45) the proceeds of such asset sales shall be applied as required by subsection 2.9(b)(iii); provided that after giving effect to any Asset Disposition pursuant to clause (xv) above, (1) to the extent that there are Extensions of Credit outstanding under the Revolving Facility, the Credit Parties shall be in compliance on a Pro Forma Basis with the financial covenant set forth in Section 5.9 hereof, recalculated for the most recently ended month for which information is available, and (2) no Default or Event of Default shall exist or shall result therefrom; provided, further, that with respect to sales of assets permitted hereunder only, the Administrative Agent shall be entitled, without the consent of the Required Lenders, to release its affairs Liens relating to the particular assets sold; or
(b) (i) purchase, lease or otherwise acquire (in a single transaction or a series of related transactions) the property or assets of any Person, other than (A) Permitted Acquisitions and (B) except as otherwise limited or prohibited herein, purchases or other acquisitions of inventory, materials, property and equipment in the ordinary course of business, or (ii) enter into any transaction of merger or consolidation, except for (A) Investments 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 inventory in the ordinary course of business, including sales of inventory on consignment in the ordinary course of business), or enter into any partnerships, joint ventures or 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 and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Holdings and its Subsidiaries may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures by Holdings and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.05;
6.5, (dB) Holdings and its Subsidiaries may sell the merger or discount, in each case without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(e) Holdings and its Subsidiaries may sell or exchange specific items of machinery or equipment, so long as the proceeds of each such sale or exchange is used to acquire (and results within 180 days of such sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights and know- how is granted thereunder) and does not otherwise prohibit the granting consolidation of a Lien by Holdings or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to the Borrower or to any other Wholly Owned Subsidiary of the Borrower, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets so transferred shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such transfer);
(h) any Wholly Owned Subsidiary of the Borrower may merge Credit Party with and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(i) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower so long as (i) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets of such Wholly Owned Subsidiary shall remain in full force and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation);
(j) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed in connection therewith as if such acquisition had occurred and such Indebtedness had been incurred as of the first day of the most recently completed Test Period (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted Acquisitioninto another Credit Party; provided that (i1) Holdings if a Borrower is a party thereto, such Borrower will be the surviving entity (other than in respect of any such transaction between two or more Borrowers, in which case one such Borrower shall have -------- delivered be the surviving entity; provided that (x) such surviving Borrower hereby agrees to the Administrative Agent, at the time of delivery assume and be directly liable for all Credit Party Obligations of the Permitted Acquisition Notice, a certificate Borrower that is merged with and into it upon the consummation of such merger and (y) if the Company is one of the Chief Financial Officer of Holdings showing compliance (Borrowers involved in reasonable detail as to pro forma calculationsthe merger, it shall be the surviving entity) with all of the provisions of this paragraph (j), and (ii2) Holdings if the Company is a party thereto, the Company will be the surviving entity, (C) the merger or consolidation of a Subsidiary that is not a Credit Party with and into a Credit Party; provided, that such Credit Party will be the Borrower shall have given surviving entity and (D) the Agents merger or consolidation of a Subsidiary that is not a Credit Party with and the Banks at least 30 days prior notice of any Permitted Acquisition (each such notice into a "Permitted Acquisition Notice"); -----------------------------
(k) leases or subleases granted by Holdings or any of its Subsidiaries to third Persons Subsidiary that is not interfering in any material respect with the business of Holdings or any of its Subsidiaries;a Credit Party.
Appears in 1 contract
Samples: Agency Succession and Amendment Agreement (GateHouse Media, Inc.)
