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 Corp), Credit Agreement (Coinmach Laundry Corp)
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 (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 Merger and Recapitalization;
(b) the Company 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 Company 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 Company 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 $25,000,000 in any fiscal year of the Company 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); provided further that the Net Cash Proceeds from the sale of warehouses, customer service and other administrative facilities shall be excluded from the limitations set forth in clause (i) above to the extent such sales (A) would not result in a Material Adverse Effect, (B) shall be made for fair market value and (C) the Net Cash Proceeds from such sales are applied to repay Term Loans as provided in Section 4.02(A)(c) ;
(f) the Company 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 $1,000,000 in any fiscal year of the Borrower;
(g) the Company and its Subsidiaries may sell or discount, in each case without recourserecourse (other than customary representations, accounts warranties and retained interests), Receivables to the Receivables Subsidiary, and the Receivables Subsidiary may sell Receivables or an undivided interest therein to any other Person, pursuant to any Permitted Receivables Financing, and convert or exchange Receivables into or for notes receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(eh) Holdings the Company 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 180 360 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 Company and its Subsidiaries may, in the ordinary course of business, license, as licensor or licensee, license patents, trademarks, copyrights and servicemarks, trade names, technology, know-how and formulas or other rights 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 by the Company or any of its Subsidiaries pursuant to the Security Agreement (to the extent that a security interest in such patents, trademarks, copyrights servicemarks, trade names, technology, know-how and know- how formulas or other rights 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;
(gj) any Wholly Owned Subsidiary of the Borrower Company may transfer assets to be merged or consolidated with or into the Borrower Company (provided that the Company shall be the continuing or to surviving corporation) or with or into any other Wholly Owned one or more wholly owned Subsidiary of Guarantors (provided that the Borrower, so long as (i) if wholly owned Subsidiary or Subsidiaries shall be 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 transfercontinuing or surviving company);
(hk) any Wholly Owned wholly owned Subsidiary of the Borrower may merge with and intosell, lease, transfer or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation otherwise dispose of any such merger, dissolution or all of its assets (upon voluntary liquidation and (iior otherwise) 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 Company or any other 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)Guarantor;
(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);
(jl) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition therefrom, the Company 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 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 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 Subsidiary of the Permitted Acquisition Notice, Company or (B) such Person is merged with and into a certificate Wholly-Owned Subsidiary of the Chief Financial Officer Company (with such Wholly-Owned 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 8.15 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 (iv) the Company and its Subsidiaries are in compliance, on a pro forma basis after giving effect to such acquisition, with the covenants contained in Sections 8.09, 8.10, 8.11 and 8.12 ; provided further that if such acquisition is structured as a stock acquisition, the Person so acquired shall not be required to become a Wholly-Owned Subsidiary or to be merged into a Wholly-Owned Subsidiary as required by clause (ii) Holdings or above if (A) such Person so acquired becomes a Subsidiary and (B) the Borrower aggregate consideration for, and other investments in, all Subsidiaries so acquired since the date of this Agreement that are not Wholly-Owned Subsidiaries 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 $50,000,000;
(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) any Subsidiary that is not a Material Subsidiary and is not a Borrower may liquidate or dissolve; and
(o) the Company and its Subsidiaries may sell, transfer or otherwise dispose of all or a portion of the Xxxxxx Technology Group, including, but not limited to, an initial public offering of stock in one or more of the entities comprising the Xxxxxx Technology Group; provided that the following conditions shall be satisfied in connection with each such sale or offering: (i) at the time thereof and after giving effect thereto the assets and properties comprising the Xxxxxx Technology Group or applicable portion thereof (including the assets and properties of each Person included therein) shall include only those assets and properties comprising the Xxxxxx Technology Group prior to the date of this Agreement and any assets and properties acquired by the Xxxxxx Technology Group in the ordinary course of its business subsequent to the date of this Agreement; (ii) at the time thereof and after giving effect thereto no Person included in the Xxxxxx Technology Group or applicable portion thereof shall be a party to or otherwise bound by any contract or other transaction involving the Company or any other Subsidiary that would not be permitted under Section 8.08 if entered into at such time (determined on the basis that such Person is an Affiliate); and (iii) after giving effect thereto neither the Company nor any Subsidiary thereof shall be obligated upon any Indebtedness to or of any Person included in the Xxxxxx Technology Group or applicable portion thereof. 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 (other than to the Company or a Subsidiary), or any Collateral is sold or otherwise disposed of as permitted by this Section 8.02 (other than to the Company or a Subsidiary), 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
Samples: Credit Agreement (Fisher Scientific International Inc)
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 merger, amalgamation or consolidation, or convey, transfer, sell, lease or otherwise dispose ("TRANSFER") 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 businessinventory, including sales of inventory on consignment terrestrial communications equipment, goods, services or communications capacity made 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 9.07Subsidiaries;
(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 connection the reasonable opinion of such Person, are obsolete, uneconomic or no longer useful in the conduct of such Person's business, PROVIDED that in the case of any sale or disposition constituting an Asset Sale, the Net Sale Proceeds therefrom are either applied or reinvested, in each case in accordance with the compromise or collection thereofSection 4.02(c);
(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 Transfer all or any part of its 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 merge, amalgamate or consolidate 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 a surviving corporation Person of any such merger, amalgamation, consolidation, 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, amalgamation, consolidation, dissolution or liquidation)) and all actions required to maintain said perfected status have been taken;
(ig) any Wholly Owned Subsidiary of the Borrower that is not a Subsidiary Guarantor may merge be merged, amalgamated or consolidated with and into, or be dissolved or liquidated into, or transfer any Wholly Owned of its assets to, any Subsidiary of the Borrower that is not a Subsidiary Guarantor;
(h) the Borrower and its 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) such Wholly Owned Subsidiary is a Guarantor the Borrower and is the surviving corporation of any such mergerits Subsidiaries may, 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 business, license, as licensor or licensee, patents, trademarks, copyrights and effect and perfected (know-how to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation)from third Persons or one another;
(j) the Borrower and the Subsidiary Guarantors may transfer property or assets to Wholly-Owned Subsidiaries that are not Subsidiary Guarantors, 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 at 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 Borrower) to all such Subsidiaries on and after the Effective Date does not exceed the sum of (including i) $75,000,000 PLUS (ii) the aggregate fair market value of all assets of Subsidiaries of the Borrower that are not Subsidiary Guarantors (as determined in good faith by senior management of the Borrower) transferred by such Subsidiaries to the Borrower and any other Permitted Acquisition that occurred, Subsidiary Guarantor pursuant to Section 9.02(e) or (f) after the Effective Date;
(k) the Borrower 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 sell or otherwise dispose of assets (including the capital stock of, or other Equity Interests in, any of their respective Subsidiaries, Joint Ventures and Unrestricted Subsidiaries), PROVIDED that (i) Holdings 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, (ii) 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), (iii) each such sale results in consideration at least 75% of which (taking into account the amount of cash, the principal amount or face amount (whichever is greater) of any promissory notes and the fair market value, as determined by senior management of the Borrower in good faith, of any other consideration) shall be in the form of cash and Cash Equivalents, (iv) the aggregate Net Sale Proceeds of all assets sold or otherwise disposed of pursuant to this clause (k) after the Effective Date shall not exceed $500,000,000 in the aggregate, (v) no Default or Event of Default exists at the time of or immediately after giving effect to any such sale or disposition, (vi) after giving effect to any such sale the Borrower shall be in compliance with the covenants contained in Sections 9.09 and 9.10 (in each case, giving effect to the last sentence appearing therein) for the Calculation Period most recently ended prior to the date of such sale, (vii) the Borrower shall have -------- delivered to the Administrative AgentAgent an officer's certificate executed by an Authorized Officer, at the time of delivery of the Permitted Acquisition Notice, a certificate of the Chief Financial Officer of Holdings showing compliance certifying (in reasonable detail detail) as to pro forma calculationsthe compliance with the requirements set forth in preceding clauses (v) with all and (vi), and (viii) the Net Sale Proceeds therefrom are either applied as provided in Section 4.02(c) or reinvested to the extent permitted by Section 4.02(c) and/or the other relevant provisions of this Agreement;
(l) the Borrower and its Subsidiaries may enter into agreements to effect mergers, amalgamations, consolidations, acquisitions and other Transfers of property or assets, so long as the respective transaction is permitted pursuant to 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
Appears in 1 contract
Samples: Credit Agreement (Intelsat LTD)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and Except as otherwise provided in this Agreement or the Borrower Orders, or as required by Section 8.15 of this Agreement, the Borrowers 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, or convey, sell, lease sell 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 or obsolete equipment or excess equipment no longer needed in the ordinary course conduct of business, including sales of inventory on consignment the business in the ordinary course of business), or enter into including pursuant to any partnerships, joint ventures or sale-/leaseback transactionstransaction, or purchase purchase, lease or otherwise acquire (in one all or a series of related transactions) any part of the property or assets of any Person (other than leases, purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) ), or agree to do any of the foregoing at any Personfuture time, except that the following shall be permitted:
(a) Holdings the Borrowers and its their Subsidiaries may, may lease (as lessee lessee) real or lessor, enter into operating leases personal property in the ordinary course of business with respect to real or personal property(so long as such lease does not create a Capitalized Lease Obligation);
(b) Capital Expenditures by Holdings the Borrowers 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 their Subsidiaries may sell license or discountsublicense software, in each case without recoursecustomer lists, accounts receivable arising trademarks, service marks, patents, trade names and copyrights and other intellectual property in the ordinary course of business, but only in connection provided, that such licenses or sublicenses shall not materially interfere with the compromise business of the Borrowers or collection thereofany such Subsidiary;
(ec) Holdings each of the Borrowers and its Subsidiaries may sell make sales or exchange specific items transfers 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, inventory in the ordinary course of business, license, as licensor business and consistent with past practices (including without limitation sales or licensee, patents, trademarks, copyrights and know-how to third Persons and to one another, so long as any such license transfers of inventory 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
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 consignment in the ordinary course of businessvendor financial service programs or 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 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, 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 pursuant to the Mortgages 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 9.078.08;
(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 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 its Subsidiaries, the functional equivalent of the item of equipment so sold or exchanged;
(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 any such license by Holdings 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- 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;
(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 corporation of any such merger, dissolution or liquidation and (ii) in each case at least 65% of the total combined voting power of all classes of capital stock of all first-tier Foreign Subsidiaries are pledged pursuant to the Pledge 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 corporation 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 security interest 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) the Borrower may contribute cash to one or more Wholly-Owned Domestic Subsidiaries formed after the Initial Borrowing Date in accordance with Section 8.14, so long as the aggregate amount of such cash so contributed to all such Domestic Subsidiaries does not exceed $2,000,000;
(l) 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 does not exceed $10,000,000;
(m) assets of the Borrower and its Domestic Subsidiaries (other than any Domestic Subsidiary owning assets or having operations in Puerto Rico) constituting non-U.S. operations may be transferred to Wholly-Owned Foreign Subsidiaries of the Borrower;
(n) each of the Borrower and its Subsidiaries may sell assets, provided that (x) the aggregate sale of proceeds from all assets subject to -------- such sales pursuant to this clause (n) shall not exceed $5,000,000 in any fiscal year of the Borrower, (y) any such asset sale is for at least 80% in cash and at fair market value (as determined in good faith by the Board of Directors or senior management of the Borrower) and (z) the Net Proceeds therefrom are either applied to repay Term Loans as provided in Section 4.02(A)(c) or reinvested to the extent permitted by Section 4.02(A)(c);
(o) each of the Borrower and its Subsidiaries may sell other assets, provided that the aggregate sale proceeds from all assets subject to such -------- sales pursuant to this clause (o) shall not exceed $500,000 in any fiscal year of the Borrower;
(p) so long as no Default or Event of Default then exists or would result therefrom, the Borrower and its Subsidiaries may acquire assets or the capital stock of any Person (any such acquisition permitted by this clause (p), 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, then either (A) the Person so acquired becomes a Wholly-Owned Subsidiary of the Borrower or (B) such Person is merged with and into the Borrower or a Wholly-Owned Subsidiary of the Borrower (with the Borrower or such Wholly- Owned Subsidiary 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 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, Holdings Common Stock (valued based on the then current trading price for such Holdings Common Stock) and/or 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 (v) (x) any such Permitted Acquisition (or series of related Permitted Acquisitions) involving an expenditure (with the consideration valued as set forth in clause (iv) above) in excess of $20,000,000 and less than or equal to $30,000,000 shall not be consummated without the prior written consent of the Required Banks unless the Pro Forma Leverage Ratio on the date of such acquisition is less than 2.50:1.00 and (y) any such Permitted Acquisition (or series of related Permitted Acquisitions) involving an expenditure (with the consideration valued as set forth in clause (iv) above) in excess of $30,000,000 shall not be consummated without the prior written consent of the Required Banks;
(q) any Domestic Subsidiary of the Borrower may transfer assets (other than accounts receivable and 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 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);
(hr) 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 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 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);
(is) any Wholly Owned Domestic Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly other Wholly-Owned Domestic Subsidiary of the Borrower so long as (i) such Wholly Wholly-Owned Domestic Subsidiary is a Guarantor and of 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);
(jt) the Borrower and its Subsidiaries may effect the Designated Real Property Sale, provided that the Designated Real Property Sale is for at -------- least 80% in cash and at fair market value (as determined in good faith by the Board of Directors or senior management of the Borrower);
(u) the Borrower and its Subsidiaries may effect any West Coast Asset Sale, provided that (x) any such West Coast Asset Sale is for at -------- least 80% in cash and at fair market value (as determined in good faith by the Board of Directors or senior management of the Borrower) and (y) the Net Proceeds therefrom are either applied to repay Term Loans as provided in Section 4.02(A)(c) or reinvested to the extent permitted by Section 4.02(A)(c);
(v) the Borrower and its Subsidiaries may, in the ordinary course of business, sell, transfer or otherwise dispose of assets (including, without limitation, patents, trademarks, copyrights and know-how) which, in the reasonable judgment of the Borrower or such Subsidiary, are determined to be uneconomical, negligible or obsolete in the conduct of its business;
(I) the Borrower and/or its Subsidiaries may enter into factoring arrangements with respect to accounts receivable arising in Japan in connection with -58- business activities therein, (II) the Borrower and its Domestic Subsidiaries may sell or otherwise transfer accounts receivable between or among themselves in the ordinary course of business, and (III) Foreign Subsidiaries may sell or otherwise transfer accounts receivable between or among themselves in the ordinary course of business;
(x) the Permitted Sale-Leaseback Transaction shall be permitted so long as no Default (I) the Net Proceeds therefrom are either applied to repay Term Loans as provided in Section 4.02(A)(c) or Event of Default then exists reinvested to the extent permitted by Section 4.02(A)(c) and (II) the lease obligations created thereby are otherwise permitted under this Agreement; and
(y) the Borrower and its subsidiaries may transfer 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 divest of the first day Natural Touch brand name and the assets related thereto, it being understood that such transferor divestiture shall not be subject to the provisions set forth in clause (y) of Section 8.02(n);
(z) the most recently completed Test Period (including any other Permitted Acquisition that occurred, Borrower 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; sell those assets listed on Annex XV, provided that (ix) Holdings shall have any such asset sale is for at least 80% in -------- delivered cash and at fair market value (as determined in good faith by the Board of Directors or senior management of the Borrower) and (y) the Net Proceeds therefrom are either applied to repay Term Loans as provided in Section 4.02(A)(c) or reinvested to the Administrative Agent, at extent permitted by Section 4.02(A)(c); and
(aa) the time of delivery of Acquisition. To the Permitted Acquisition Notice, a certificate of extent 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 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 (jand such Collateral is permitted to be released from the Liens created by the respective Security Document), 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 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
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 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 consignment in the ordinary course of businessvendor financial service programs or 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 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 Acquisition;
(b) 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 pursuant to the Mortgages 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;
(bc) Capital Expenditures by Holdings the Borrower and its Subsidiaries to the extent not in violation of Section 9.078.08;
(cd) the advances, investments and loans permitted pursuant to Section 9.058.05;
(de) 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;
(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 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 its Subsidiaries, 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, 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 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 Holdings the Borrower or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(gh) 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 corporation of any such merger, dissolution or liquidation and (ii) in each case at least 65% of the total combined voting power of all classes of capital stock of all first-tier Foreign Subsidiaries are pledged pursuant to the Pledge Agreement;
(i) 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 corporation of any such merger, dissolution or liquidation;
(j) 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 (i) of this Section 8.02;
(k) 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 security interest 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);
(l) the Borrower may contribute cash to one or more Wholly-Owned Domestic Subsidiaries formed after the Initial Borrowing Date in accordance with Section 8.14, so long as the aggregate amount of such cash so contributed to all such Domestic Subsidiaries does not exceed $1,000,000;
(m) 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 does not exceed $5,000,000;
(n) assets of the Borrower and its Domestic Subsidiaries (other than any Domestic Subsidiary owning assets or having operations in Puerto Rico) constituting non-U.S. operations may be transferred to Wholly-Owned Foreign Subsidiaries of the Borrower;
(o) each of the Borrower and its Subsidiaries may sell assets, provided that (x) the aggregate sale of proceeds from all assets subject to -------- such sales pursuant to this clause (o) shall not exceed $1,000,000 in any fiscal year of the Borrower, (y) any such asset sale is for at least 80% in cash and at fair market value (as determined in good faith by the Board of Directors or senior management of the Borrower) and (z) the Net Proceeds therefrom are either applied to repay Term Loans as provided in Section 4.02(A)(c) or reinvested to the extent permitted by Section 4.02(A)(c);
(p) each of the Borrower and its Subsidiaries may sell other assets, provided that the aggregate sale proceeds from all assets subject to such -------- sales pursuant to this clause (p) shall not exceed $250,000 in any fiscal year of the Borrower;
(q) so long as no Default or Event of Default then exists or would result therefrom, the Borrower may acquire assets or the capital stock of any Person (any such acquisition permitted by this clause (q), 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, then either (A) the Person so acquired becomes a Wholly-Owned Subsidiary of the Borrower or (B) such Person is merged with and into the Borrower or a Wholly-Owned Subsidiary of the Borrower (with the Borrower or such Wholly-Owned Subsidiary 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 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, Holdings Common Stock and/or Permitted Holdings PIK Securities, (v) the aggregate amount of cash, Holdings Common Stock (valued in good faith by the Board of Directors or senior management of Holdings or, to the extent such Holdings Common Stock represents more than $5,000,000 of the total consideration paid in connection with such Permitted Acquisition, by an independent financial institution or appraisal firm reasonably satisfactory to the Agent or, after the initial public offering of Holdings Common Stock, based on the then current trading price for such Holdings Common Stock) and 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) expended by the Borrower in connection with any such acquisition (or series of related acquisitions) shall not exceed $15,000,000 (or, at any time during a Reduced Leveraged Period, $25,000,000) and (vi) the aggregate amount of cash expended by the Borrower in connection with any such acquisition (or series of related acquisitions) shall not exceed an amount equal to the sum of (x) $6,500,000 (or, at any time during a Reduced Leverage Period, $14,000,000) less the aggregate amount of such $6,500,000 (or $14,000,000, as the case may be) previously utilized to make Permitted Acquisitions or to make investments under Section 8.05(w)(A) plus (y) the Excess Proceeds Amount at the time of such acquisition;
(r) any Domestic Subsidiary of the Borrower may transfer assets (other than accounts receivable and 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 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);
(hs) any Wholly Wholly-Owned Domestic Subsidiary of the Borrower may merge with and into the Borrower so long as (i) the Borrower is the surviving corporation of such 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 Domestic 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);
(t) 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 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);
(iu) the Borrower and its Subsidiaries may effect the Designated Real Property Sale, provided that the Designated Real Property Sale is for at -------- least 80% in cash and at fair market value (as determined in good faith by the Board of Directors or senior management of the Borrower);
(v) the Borrower and its Subsidiaries may effect any West Coast Asset Sale, provided that (x) any Wholly Owned Subsidiary such West Coast Asset Sale is for at least 80% -------- in cash and at fair market value (as determined in good faith by the Board of Directors or senior management of the Borrower) and (y) the Net Proceeds therefrom are either applied to repay Term Loans as provided in Section 4.02(A)(c) or reinvested to the extent permitted by Section 4.02(A)(c);
(w) the Borrower and its Subsidiaries may, in the ordinary course of business, sell, transfer or otherwise dispose of assets (including, without limitation, patents, trademarks, copyrights and know-how) 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;
(I) the Borrower and/or its Subsidiaries may enter into factoring arrangements with respect to accounts receivable arising in Japan in connection with business activities therein, (II) the Borrower and its Domestic Subsidiaries may sell or otherwise transfer accounts receivable between or among themselves in the ordinary course of business, and (III) Foreign Subsidiaries may sell or otherwise transfer accounts receivable between or among themselves in the ordinary course of business;
(y) the Permitted Sale-Leaseback Transaction shall be permitted so long as (iI) such Wholly Owned Subsidiary is a Guarantor and is the surviving corporation of any such merger, dissolution Net Proceeds therefrom are either applied to repay Term Loans as provided in Section 4.02(A)(c) or liquidation reinvested to the extent permitted by Section 4.02(A)(c) and (iiII) the security interests granted to lease obligations created thereby are otherwise permitted under this Agreement; and
(z) the Collateral Agent for the benefit Borrower and its subsidiaries may transfer or divest of the Secured Creditors pursuant to the Security Documents in Natural Touch brand name and 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);related thereto; and
(jaa) so long as no Default or Event of Default then exists or would result therefrom (including giving pro forma effect to such acquisition the Borrower 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; sell those assets listed on Annex XIV, provided that (ix) Holdings shall have any such asset sale is for at least 80% in -------- delivered cash and at fair market value (as determined in good faith by the Board of Directors or senior management of the Borrower) and (y) the Net Proceeds therefrom are either applied to repay Term Loans as provided in Section 4.02(A)(c) or reinvested to the Administrative Agent, at extent permitted by Section 4.02(A)(c). To the time of delivery of extent 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 Section 8.02 with respect to the sale or other disposition of any Collateral, or any Collateral is sold as permitted by this Section 8.02 (jand such Collateral is permitted to be released from the Liens created by the respective Security Document), 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 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
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) least 80% of which (taking into account the amount of cash, but only 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 $10,000,000 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 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 Recapitalization, the Pacer Logistics Acquisition and the Sale-Leaseback Transaction shall be permitted to the extent consummated in accordance with the relevant requirements of Section 5.08 of this Agreement;
(j) 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;
(k) 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 $7,500,000 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
Samples: Credit Agreement (Pacer Express Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Company will not, and will not permit any of their respective Subsidiaries Subsidiary to, 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 (or agree to do any of the foregoing at any future time) all or any part of its property or assets (other than inventory or obsolete equipment or excess equipment no longer needed in the conduct of the business in the ordinary course of business) or purchase, 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 lease or otherwise acquire (in one all or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions -104- -46- of inventory, leases, materials and equipment in the ordinary course of business) or agree to do any of the foregoing at any Personfuture time, except that the following shall be permitted:
(a) Holdings any entity that is a member of the Xxxx Group or the Eljer Group may be merged or consolidated with or into, or be liquidated into, another member of said Group (so long as a Borrower is the surviving entity to the extent involving a Borrower or a Subsidiary Guarantor is the surviving entity to the extent involving a Subsidiary Guarantor), or all or any part of its business, properties and assets of such entity may be conveyed, leased, sold or transferred to another member of such Group that is a Borrower or a Subsidiary Guarantor, provided that no such merger, consolidation, liquidation, conveyance, lease, sale or transfer consummated prior to the Plan Confirmation Date may involve Brass or its assets or liabilities;
(b) capital expenditures to the extent within the limitations set forth in Section 8.05 hereof;
(c) the investments, acquisitions and transfers or dispositions of properties permitted pursuant to Section 8.06;
(d) each of the Company and its Subsidiaries may, may lease (as lessee lessee) real or lessor, enter into operating leases personal property in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures so long as such lease does not create a Capitalized Lease Obligation not otherwise permitted 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 thereof8.04(c));
(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 AcquisitionSales; 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;and
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 affairs, or enter into any transaction of merger or consolidation, or convey, sell, lease sell or otherwise dispose of (or agree to do any of the foregoing at any future time) all, substantially 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 purchase, lease or otherwise acquire (in one 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, materials and equipment inventory in the ordinary course of business) or agree to do any of the foregoing at any Personfuture time, 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 therefrom, Capital Expenditures may be made by the Company and its Subsidiaries in the ordinary course of their respective businesses;
(b) advances, investments and loans (including Joint Venture Investments in Permitted Joint Ventures) may be made to the extent permitted pursuant to Section 8.05;
(c) Dividends may be paid to the extent permitted by Section 8.06;
(d) the Company and its Subsidiaries may lease (as lessee) real or personal property in the ordinary course of business and otherwise in compliance with this Agreement so long as such lease does not create Capitalized Lease Obligations except as otherwise permitted by Section 8.03(b);
(e) each of the Company and its Subsidiaries may, in the ordinary course of business and consistent with past practices, sell, lease (as lessor) or otherwise dispose of any of its equipment to the extent that (x) any such sale, lease or disposition shall be in an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the Company), and (y) any such sale shall be solely for cash or for cash, promissory notes and/or contingent payment obligations of, and/or equity interests in, the transferee or issuer, provided that the sum of (A) the aggregate principal amount of promissory notes outstanding at any time accepted by the Company and/or its Subsidiaries from all such sales, leases and dispositions and all sales and dispositions effected pursuant to Sections 8.01(f) and (g), plus (B) the aggregate initial value of all such contingent payment obligations (as determined in good faith by senior management of the Company) received by the Company and/or its Subsidiaries from all such sales, leases and dispositions and all sales and dispositions effected pursuant to Sections 8.01(f) and (g), plus (C) the aggregate initial value of all equity securities (as determined in good faith by senior management of the Company) received by the Company and/or any of its Subsidiaries from all such sales, leases and dispositions and all sales and dispositions effected pursuant to Sections 8.01(f) and (g), shall not at any time exceed 20% of the Consolidated Net Worth of the Company at such time;
(f) the Company and its Subsidiaries may sell or otherwise dispose of non-strategic lines of their respective businesses (as so determined in good faith by senior management of the Company) (any such sale permitted by this clause (f), a “Permitted Line of Business Sale”), so long as (i) to the extent any such Permitted Line of Business Sale is of the capital stock of any Subsidiary of the Company such Permitted Line of Business Sale must be of 100% of such capital stock owned by the Company, (ii) any such sale shall be solely for cash, or for cash, promissory notes and/or contingent payment obligations of, and/or equity interests in, the transferee or issuer, provided that the sum of (A) the aggregate initial principal amount of promissory notes accepted by the Company and/or its Subsidiaries from all such sales and dispositions and all sales, leases and dispositions effected pursuant to Sections 8.01(e) and (g) plus (B) the aggregate initial value of all such contingent payment obligations (as determined in good faith by senior management of the Company) received by the Company and/or its Subsidiaries from all such sales and dispositions and all sales, leases and dispositions effected pursuant to Sections 8.01(e) and (g) plus (C) the aggregate initial value of all equity securities (as determined in good faith by senior management of the Company) received by the Company and/or any of its Subsidiaries from all such sales and dispositions and all sales, leases and dispositions effected pursuant to Sections 8.01(e) and (g), shall not at any time exceed 20% of the Consolidated Net Worth of the Company at such time, (iii) the aggregate book value (as determined in good faith by senior management of the Company) of all assets subject to all Permitted Line of Business Sales pursuant to this clause (f) in any fiscal year of the Company shall not exceed $60,000,000, (iv) no Default or Event of Default exists (both before and after giving pro forma effect to such acquisition Permitted Line of Business Sale), (v) the Company shall have given the Administrative Agent and --- ----- any additional Indebtedness resulting therefrom or incurred or assumed the Banks at least 10 Business Days prior written notice of the closing of such Permitted Line of Business Sale, (vi) to the extent that the sum of (A) the aggregate book value (as determined in connection therewith good faith by senior management of the Company) of all of the assets subject to such Permitted Line of Business Sale plus (B) the aggregate book value (as determined in good faith by senior management of the Company) of all of the assets subject to all other Permitted Line of Business Sales consummated in the same fiscal year as such Permitted Line of Business Sale exceeds $30,000,000, the Company in good faith shall believe, based on calculations made by the Company on a pro forma basis (the pro forma adjustments made by the Company in making the calculations pursuant to this clause (vi) shall be subject to the reasonable satisfaction of the Administrative Agent and the Required Banks) after giving effect to the respective Permitted Line of Business Sale as if such acquisition had occurred and such Indebtedness Permitted Line of Business Sale had been incurred as of consummated on the first date occurring twelve months prior to the last day of the most recently completed Test Period ended fiscal quarter of the Company, that the covenants contained in Sections 8.09 through 8.10, inclusive, of this Agreement would have been met for the one-year period ended on the last day of such fiscal quarter, (including any vii) to the extent that the sum of (A) the aggregate book value (as determined in good faith by senior management of the Company) of all of the assets subject to such Permitted Line of Business Sale plus (B) the aggregate book value (as determined in good faith by senior management of the Company) of all of the assets subject to all other Permitted Acquisition Line of Business Sales consummated in the same fiscal year as such Permitted Line of Business Sale exceeds $30,000,000, the Company in good faith shall believe, based on calculations made by the Company, on a pro forma basis after giving effect to the respective Permitted Line of Business Sale, that occurredthe covenants contained in Sections 8.09 through 8.10, inclusive, will continue to be met for the one-year period following the date of the consummation of the respective Permitted Line of Business Sale 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 (iviii) Holdings the Company shall have -------- delivered to the Administrative AgentAgent an officer’s certificate executed by a Senior Financial Officer of the Company, certifying, to the best of his knowledge, compliance with the requirements of preceding clauses (i) through (vii) and, to the extent that pro forma calculations are required by the preceding clauses (vi) and (vii), then such certificate shall also contain such pro forma calculations (including, without limitation, any currency exchange calculations required in connection therewith as a result of the incurrence of Revolving Loans or Competitive Bid Loans or the issuance of Letters of Credit, in each case denominated in an Approved Alternate Currency). The consummation of each Permitted Line of Business Sale shall be deemed to be a representation and warranty by the Company that all conditions thereto have been satisfied and that same is permitted in accordance with the terms of this Agreement, which representation and warranty shall be deemed to be a representation and warranty for all purposes hereunder, including, without limitation, Sections 5.02 and 9;
(g) the Company and its Subsidiaries may, in the ordinary course of business and consistent with past practices, sell or otherwise dispose of any of its Real Property to the extent that (w) any such sale or disposition shall be in an amount at least equal to the fair market value thereof (as determined in good faith by senior management of the Company), (x) any such sale shall be solely for cash, or for cash, promissory notes and/or contingent payment obligations of, and/or equity interests in, the transferee or issuer, provided that the sum of (A) the aggregate initial principal amount of promissory notes accepted by the Company and/or its Subsidiaries from all such sales and dispositions and all sales, leases and dispositions effected pursuant to Sections 8.01(e) and (f) plus (B) the aggregate initial value of all such contingent payment obligations (as determined in good faith by senior management of the Company) received by the Company and/or its Subsidiaries from all such sales and dispositions and all sales, leases and dispositions effected pursuant to Sections 8.01(e) and (f) plus (C) the aggregate initial value of all equity securities (as determined in good faith by senior management of the Company) received by the Company and/or any of its Subsidiaries from all such sales and dispositions and all sales, leases and dispositions effected pursuant to Sections 8.01(e) and (f), shall not at any time exceed 20% of the Consolidated Net Worth of the Company at such time, and (y) the fair market value of (A) any parcel of Real Property subject to a sale pursuant to this clause (g) (as determined in good faith by senior management of the Company) shall not exceed $10,000,000 per sale, and (B) all Real Property subject to sales pursuant to this clause (g) (as determined in good faith by senior management of the Company) shall not exceed $50,000,000 in the aggregate for all such sales;
(h) the Company and its Subsidiaries may acquire Reinvestment Assets with the proceeds from any Reinvestment Event;
(i) the Company and its Subsidiaries may acquire (other than on a hostile basis) assets constituting all or substantially all of a business, business unit, division or product line of any Person not already a Subsidiary of the Company or capital stock of any such Person (including any such acquisition by way of merger or consolidation) (any such acquisition permitted by this clause (i), a “Permitted Acquisition”), so long as in the case of any such Permitted Acquisition (i) the only consideration paid by the Company and its Subsidiaries in respect of such Permitted Acquisition consists of cash, Common Stock, Indebtedness secured by Liens permitted by Section 8.02(g), to the extent permitted by Section 8.03(b) and/or Permitted Earn-Out Debt to the extent permitted by Section 8.03(k), (ii) no Default or Event of Default then exists (both before and after giving effect to such Permitted Acquisition), (iii) all representations and warranties contained herein and in the other Credit Documents shall be true and correct in all material respects with the same effect as though such representations and warranties had been made on and as of the date of such Permitted Acquisition (both before and after giving effect thereto), unless stated to relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date, (iv) such assets are to be employed in, and/or such Person was at the time of delivery such acquisition engaged in, the businesses permitted pursuant to Section 8.08, (v) to the extent that such Permitted Acquisition is of the capital stock of another Person such Permitted Acquisition Notice, a certificate must be of the Chief Financial Officer 100% of Holdings showing compliance such capital stock (in reasonable detail as to pro forma calculationsexcept for directors qualifying shares) with and all of the provisions of this paragraph Section 8.04 to the extent applicable shall have been complied with in respect of such Permitted Acquisition, (j)vi) the Company or such Subsidiary is the surviving corporation of any Permitted Acquisition structured as a merger or consolidation, and (iivii) Holdings or with respect to each Permitted Acquisition, (A) the Borrower Company shall have given the Agents Administrative Agent and the Banks at least 30 days 5 Business Days prior written notice of the closing of such Permitted Acquisition, (B) the Company in good faith shall believe, based on calculations made by the Company, on a pro forma basis after giving effect to the respective Permitted Acquisition, that the covenants contained in Sections 8.09 through 8.10, inclusive, will continue to be met for the one-year period following the date of the consummation of the respective Permitted Acquisition and (C) if requested by the Administrative Agent or the Required Banks, the Company shall have delivered to the Administrative Agent an officer’s certificate executed by a Senior Financial Officer of the Company, certifying, to the best of his knowledge, compliance with the requirements of clauses (i) through (vii) of this Section 8.01(i) and containing the pro forma calculations required by the preceding clause (vii)(B), including, without limitation, any currency exchange calculations required in connection therewith as a result of the incurrence of Revolving Loans or Competitive Bid Loans or the issuance of Letters of Credit, in each case denominated in an Approved Alternate Currency; provided, that the provisions of the preceding clauses (vii)(A), (vii)(B) and (vii)(C) (to the extent requiring pro forma calculations) shall be applicable only to the extent that either (x) the sum of (I) the Permitted Acquisition Amount in respect of such Permitted Acquisition plus (II) the aggregate fair market value (determined as of the proposed date of consummation of such Permitted Acquisition in good faith by senior management of the Company) of any Common Stock issued as consideration in connection with such Permitted Acquisition, exceeds $30,000,000, or (y) such Permitted Acquisition does not meet the criteria set forth in clause (x) above and the sum of (I) the Permitted Acquisition Amount in respect of such Permitted Acquisition plus (II) the Permitted Acquisition Amount in respect of all other Permitted Acquisitions consummated in the same fiscal year of the Company as such proposed Permitted Acquisition is to be consummated (but excluding Permitted Acquisitions meeting the criteria set forth in clause (x) above) plus (III) the aggregate fair market value (determined as of the proposed date of consummation of such Permitted Acquisition in good faith by senior management of the Company) of any Common Stock issued as consideration in connection with such Permitted Acquisition and all other Permitted Acquisitions consummated in the same fiscal year of the Company as such proposed Permitted Acquisition is to be consummated (but excluding any Permitted Acquisition Acquisitions meeting the criteria set forth in clause (each such notice a "Permitted Acquisition Notice"x) above), exceeds $30,000,000; -----------------------------and
(kj) leases or subleases granted by Holdings or any of the Company and its Subsidiaries may transfer accounts receivable and related assets pursuant to third Persons not interfering in any material respect with the business of Holdings or any of its Subsidiaries;Permitted Receivables Securitization Program.
Appears in 1 contract
Samples: Credit Agreement (Ametek Inc/)
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 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 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, 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 9.078.08;
(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 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 its Subsidiaries, the functional equivalent of the item of equipment so sold or exchanged;
(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 any such license by Holdings 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- 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;
(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 corporation 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 Pledge 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 corporation 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 security interest 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 after the Initial Borrowing Date in accordance with Section 8.13;
(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), does not exceed $10,000,000;
(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 and is continuing, each of the Borrower and its Subsidiaries may sell assets at the fair market value (as determined in good faith by the Board of Directors or senior management of the Borrower), provided that the aggregate sale proceeds from all assets subject to such sales pursuant to this clause (n) shall not exceed $3,000,000 in any fiscal year of the Borrower;
(o) so long as no Default or Event of Default then exists or would result therefrom, the Borrower and its Subsidiaries may acquire assets or the capital stock of any Person (any such acquisition permitted by this clause (o), 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, then either (A) the Person so acquired becomes a Wholly-Owned Subsidiary of the Borrower or a Controlled Subsidiary of the Borrower or such stock of such Person is Publicly Traded 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 or such Wholly-Owned Subsidiary being the surviving corporation of such merger), and in any case, all of the provisions of Section 8.13 have been complied with in respect of such Person, (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) shall not exceed $15,000,000 plus (I) the then applicable Equity Proceeds Amount and (II) (without duplication) the then applicable Vitamin Antitrust Litigation Proceeds Amount, (vi) in the case of any such Permitted Acquisition (or series of related Permitted Acquisitions) 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 $15,000,000 (plus, as of any date, the then applicable Equity Proceeds Amount and (without duplication) the Vitamin Antitrust Litigation Proceeds Amount, in each case determined 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 $1,000,000, 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, giving effect to such Permitted Acquisition, the Borrower would have been in compliance with Sections 8.09 and 8.10 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 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 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 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);
(ir) any Wholly Owned Domestic Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly other Wholly-Owned Domestic Subsidiary of the Borrower so long as (i) such Wholly Wholly-Owned Domestic Subsidiary is a Guarantor and of 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);
(js) the Borrower and its Subsidiaries may, in the ordinary course of business, sell, transfer or otherwise dispose of assets (including, without limitation, patents, trademarks, copyrights and know-how) which, in the reasonable judgment of the Borrower or such Subsidiary, are determined to be uneconomical, negligible or 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 amount of sales thereunder does not exceed $2,000,000; and
(u) 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 is continuing, the Borrower 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; effect any Designated Real Property Sale, provided that (i) Holdings shall have -------- delivered to such Designated Real Property Sale is at fair market value, as determined in good faith by the Administrative Agent, at the time Board of delivery Directors or senior management of the Permitted Acquisition NoticeBorrower and (ii) the aggregate amount of proceeds from all Designated Real Property Sales pursuant to this clause (u), a certificate when combined with the aggregate principal amount of all Indebtedness incurred pursuant to Section 8.04(r), do not exceed $15,000,000; 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, 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 (Nutraceutical International Corp)
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 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 (other than sales, transfers or other dispositions of 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 66 -60- 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 9.058.05;
(dc) Holdings the Company 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;
(ed) Holdings without limitation to clause (c), 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 exchanged;
(fe) 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;
(gf) the assets of any Wholly Owned Foreign Subsidiary of the Borrower Company may transfer assets be transferred to the Borrower Company or to any other Wholly Owned of its Subsidiaries, and any Foreign Subsidiary of the BorrowerCompany may be merged with and into, or be dissolved or liquidated into, the Company or any of its Subsidiaries so long as (i) if the transferee is a Subsidiary, Company or such Subsidiary is a Guarantor and the surviving corporation of any such merger, dissolution or liquidation;
(iig) 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 Domestic Subsidiary of the Borrower Company (other than DI) 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);
(i) any Wholly Owned Domestic Subsidiary of the Borrower Company (other than DI) 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 Credit Party 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 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 (j), 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 or (B) such Person is merged with and 68 -62- into the Company or a Wholly-Owned Subsidiary of the Company (with the Company or such Wholly-Owned Subsidiary 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 and (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; provided, however, that in connection with Permitted Acquisitions effected by Foreign Subsidiaries or involving the direct or indirect acquisition of assets located outside the continental United States or the stock of an entity incorporated in any jurisdiction which is not part of the United States, the aggregate consideration (other than Indebtedness incurred or assumed in connection with such Permitted Acquisitions) for all such Permitted Acquisitions shall not exceed $1 million; and provided, further, that the Company shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, Agent and Co-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 (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 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;
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Di Industries Inc)
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 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 (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 permitted pursuant to Section 9.058.05;
(d) Holdings the Company and its Subsidiaries may sell other assets 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 $5,000,000 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 without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(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 exchanged;
(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 Foreign Subsidiary of the Borrower Company may be transferred to the Company or any of its Subsidiaries, and any Foreign 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;
(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, 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 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 59 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 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 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 Subsidiary 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 $15,000,000; 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(h)) 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 Banks; 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, including any arm's-length lease by the Company or any Subsidiary of the Company of up to 50,000 square feet of its Wallingford, Connecticut facility;
(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; and
(o) inactive" or "shell" Subsidiaries may be dissolved or otherwise liquidated. 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 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 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 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 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 (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 of this Exhibit E;
(c) the advances, investments Investments and loans permitted pursuant to Section 9.058.05 of this Exhibit E;
(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 of this Exhibit E, (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 of this Exhibit E, 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 Subsidiary being the surviving corporation of such merger), and in any case, all of the provisions of Section 8.14 of this Exhibit E 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 of this Exhibit E, 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) of this Exhibit E) 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, Landlord 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;
(o) “inactive” or “shell” Subsidiaries may be dissolved or otherwise liquidated;
(p) the Transaction and the merger of Essex with and into Superior Telecommunications may be consummated;
(q) the purchase of the outstanding equity interests in Cables of Zion that are not currently held by the Company and its Subsidiaries, provided that the aggregate consideration does not exceed $25,000,000;
(r) (I) the purchase of the Cvalim Assets by the Israeli Subsidiaries for an aggregate consideration plus related working capital, in an aggregate amount not to exceed $90,000,000, provided such consideration is funded either (w) through investments, including by way of guarantee, in an amount not to exceed $15,000,000, provided that such investment is otherwise permitted by Section 8.05(p) of this Exhibit E or (x) of the Agreement through Indebtedness incurred by the Israeli Subsidiaries or (y) through an intercompany loan made to the Israeli Subsidiaries by the Company, provided that (i) such intercompany loan is secured, on terms reasonably acceptable to the Administrative Agent, with substantially all of the assets of the Israeli Subsidiaries (subject, in certain cases, to Liens on assets pledged or otherwise provided as collateral to secure governmental grants and other local obligations), including the Cvalim Assets and (ii) such secured intercompany loan is pledged to the Administrative Agent, on behalf of the Lenders, on terms acceptable to the Administrative Agent or (z) through a combination of (w), (x) and (y) and (II) vendor financing provided to support the local operations of the Israeli Subsidiaries in an amount not to exceed $60,000,000;
(s) Investments in the Mexican Subsidiaries to fund their development of certain manufacturing facilities in Mexico in an aggregate amount not to exceed $80,000,000; provided that until January 31, 2001, the amount of such Investments shall not exceed $40,000,000 in the aggregate; and provided, further, that such amount may either be funded (A) through Indebtedness incurred by the Mexican Subsidiaries or (B) through intercompany loans, on terms reasonably acceptable to the Administrative Agent, provided that (i) such intercompany loans shall be secured, on terms reasonably acceptable to the Administrative Agent, with all of the assets of the Mexican Subsidiaries, including those contemplated to be built or constructed; (ii) the Mexican Subsidiaries shall become Guarantors (it being understood that such Guaranty is subject to the last sentence of Section 8.14 of this Exhibit E) and (iii) such secured intercompany loans are pledged to the Administrative Agent, on behalf of the Lenders, on terms acceptable to the Administrative Agent or (C) up to $16,000,000 of equity or other similar contributions, or (D) through a combination of (A), (B) and (C); and
(t) the acquisition of assets by the Israeli Subsidiaries to the extent they are used or useful in the business of the Israeli Subsidiaries, provided that no credit or other support is provided thereby by the Parent, the Company or the other Subsidiaries of the Company. To the extent the Landlord waives the provisions of this Section 8.02 of this Exhibit E 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 of this Exhibit E, 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 Landlord 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 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 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) the any security interests granted to the Collateral Agent for the benefit of the Secured Creditors pursuant to the Security Documents in the assets Equity Interests of such Wholly 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, 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 8.15;
(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 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 $12,000,000 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 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 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, may lease as lessee real or lessor, enter into operating leases personal property in the ordinary course of business with respect to business, it being understood that in any event (i) the Borrower and its Domestic Subsidiaries may lease real or personal propertyproperty to one another and (ii) Foreign Subsidiaries of the Borrower may lease real or personal property to one another or to the Borrower and its Domestic Subsidiaries;
(b) Capital Expenditures by Holdings the Borrower and its Subsidiaries to the extent not in violation of Section 9.078.08;
(c) the advances, investments and loans permitted pursuant to Section 9.058.05;
(d) Holdings and its Subsidiaries may sell assets, provided that (x) the aggregate sale proceeds from all assets subject to such sales shall not exceed $50,000,000 in any fiscal year of the Borrower, (y) each such asset sale is for at least 85% cash and at fair market value (as determined in good faith by management of the Borrower) and (z) the Total Revolving Loan Commitment shall be reduced in accordance with Section 3.03(a) by the amount of the Net Cash Proceeds therefrom or the Net Cash Proceeds are reinvested in replacement assets to the extent permitted by Section 3.03(a), provided further that Holdings may not sell any capital stock of the Borrower;
(e) the Borrower and its Subsidiaries may sell other assets, provided that the aggregate sale proceeds from all such asset sales does not exceed $5,000,000 in any fiscal year of the Borrower;
(f) the Borrower and its Subsidiaries may, in connection with their business activities in Japan, enter into factoring or discounting arrangements with respect to their accounts receivable arising in Japan, so long as such factoring or discounting arrangements are on terms that are consistent with customary practice in Japan;
(g) 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;,
(eh) 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;
(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- 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 the Borrower and its Subsidiaries may (i) sell their shares of the capital stock of YMC Corp. or (ii) acquire the shares of capital stock of YMC Corp. not presently owned by them provided that YMC Corp. shall either (A) become a Wholly-Owned Subsidiary of the Borrower or (B) merge with or into a Wholly-Owned Subsidiary of the Borrower (with such Wholly-Owned Subsidiary being the surviving corporation of such merger), and in any case all of the provisions of Section 8.12 have been complied with in respect of YMC Corp.;
(k) the Borrower or its applicable Subsidiary may sell the building owned by the Borrower or such Subsidiary that is located in Sao Paulo, Brazil;
(1) the Extrel Sale;
(m) any Foreign Subsidiary may be merged with and into, or be dissolved or liquidated into, or transfer any of its assets (including, without limitation, cash) to, any Wholly-Owned Foreign Subsidiary so long as in each case at least 65% of the total combined voting power of all classes of capital stock of all first-tier Foreign Subsidiaries are pledged pursuant to the Pledge Agreement;
(n) the assets comprising the non-United States operations of the Borrower or any of its Domestic Subsidiaries may be transferred to one or more Wholly-Owned Foreign Subsidiaries;
(o) the assets (including cash) of any Foreign Subsidiary may be transferred to the Borrower or any of its Domestic Subsidiaries, and any Foreign Subsidiary may be merged with and into, or be dissolved or liquidated into, the Borrower or any of its Domestic Subsidiaries so long as the Borrower or such Domestic Subsidiary is the surviving corporation of any such merger, dissolution or liquidation;
(p) the Borrower or any of its Domestic Subsidiaries may transfer to one or more Wholly-Owned Foreign Subsidiaries those assets theretofore transferred to the Borrower or such Domestic Subsidiary by a Foreign Subsidiary (whether by merger, liquidation, dissolution or otherwise) pursuant to clause (o) of this Section 8.02;
(q) so long as no Default or Event of Default then exists or would result therefrom, Holdings and its Wholly-Owned Subsidiaries may acquire assets or the capital stock of any Person (any such acquisition permitted by this clause (q), a "Permitted Section 8.02(q) 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, then either (A) the Person so acquired becomes a Wholly-Owned Subsidiary of Holdings or (B) such Person is merged with and into a Wholly-Owned Subsidiary of Holdings (with such Wholly-Owned Subsidiary being the surviving corporation of such merger), and in any case, all of the provisions of Section 8.12 have been complied with in respect of such Person, (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 (iv) the aggregate amount (including, without limitation, any earn-out, non-compete or deferred compensation arrangements) expended by Holdings and its Wholly-Owned Subsidiaries for all such acquisitions shall not exceed $100,000,000;
(r) the Borrower and its Subsidiaries may sell or otherwise transfer inventory between or among one another in the ordinary course of business;
(s) Holdings and its Subsidiaries may sell or otherwise transfer intellectual property to Waters Investments;
(t) Holdings, the Borrower or any Domestic Subsidiary of Holdings may transfer assets (including cash) to the Borrower or to any other Wholly Wholly-Owned Domestic Subsidiary of the Borrower, Holdings 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);
(hu) 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 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);
(iv) any Wholly Owned Domestic Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly Wholly-Owned Domestic Subsidiary of the 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 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);
(jw) the Borrower and its Subsidiaries may enter into factoring or discounting arrangements made in respect of accounts receivable provided that in the case of any such arrangement entered into by the Borrower or any Domestic Subsidiary the Total Revolving Loan Commitment shall be reduced by an amount equal to the net cash proceeds received pursuant to such arrangements in accordance with Section 3.03(c); and
(x) Holdings and any Domestic Subsidiary of Holdings may transfer assets (including without limitation cash) to any Foreign Subsidiary 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 the value of the first day assets so transferred, when added to the sum 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 the aggregate outstanding principal amount of Intercompany Loans made by the Borrower and its Domestic Subsidiaries to Foreign Subsidiaries theretofore made pursuant to Section 8.05(g) and (ii) the amount of contributions, capitalizations and forgiveness theretofore made pursuant to Section 8.05(x) shall have -------- delivered to not exceed $50,000,000. To the Administrative Agent, at extent 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 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 (jand such Collateral is released (or permitted to be released) from the Liens created by the respective Security Document), 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 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 (Waters Corp /De/)
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 2.8(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 2.8(b)(ii); 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 covenants 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: First Lien 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 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.)
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 (other than sales, transfers or other dispositions of 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 and its Subsidiaries to the extent not in violation of Section 9.07;
(c) the advances, investments and loans permitted pursuant to Section 9.058.05;
(dc) Holdings the Company 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;
(ed) Holdings without limitation to clause (c), 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 exchanged;
(fe) 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;
(f) the assets of any Foreign Subsidiary of the Company may be transferred to the Company or any of its Subsidiaries, and any Foreign 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;
(g) any Wholly Owned Domestic Subsidiary of the Borrower Company (other than DI) may transfer assets to the Borrower Company or to any other Wholly Owned Domestic Subsidiary of the BorrowerCompany, so long as (i) if the transferee is a Subsidiary, such Subsidiary is a Guarantor Credit Party 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 imme- diately prior to such transfer);
(h) any Wholly Owned Domestic Subsidiary of the Borrower Company (other than DI) 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);
(i) any Wholly Owned Domestic Subsidiary of the Borrower Company (other than DI) 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 Credit Party 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 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 (j), 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 or (B) such Person is merged with and into the Company or a Wholly-Owned Subsidiary of the Company (with the Company or such Wholly-Owned Subsidiary 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 and (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; provided, however, that in connection with Permitted Acquisitions effected by Foreign Subsidiaries or involving the direct or indirect acquisition of assets located outside the continental United States or the stock of an entity incorporated in any jurisdiction which is not part of the United States, the aggregate consideration (other than Indebtedness incurred or assumed in connection with such Permitted Acquisitions) for all such Permitted Acquisitions shall not exceed $1 million; and provided, further, that the Company shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, Agent and Co-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 (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 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;
Appears in 1 contract
Samples: Senior Secured Reducing Revolving Credit Agreement (Di Industries Inc)
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 consignment in the ordinary course of businessvendor financial service programs or 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 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, 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 pursuant to the Mortgages 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 9.078.08;
(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 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 its Subsidiaries, the functional equivalent of the item of equipment so sold or exchanged;
(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 any such license by Holdings 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 Holdings the Borrower or any of its Subsidiaries 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 corporation of any such merger, dissolution or liquidation and (ii) in each case at least 65% of the total combined voting power of all classes of capital stock of all first-tier Foreign Subsidiaries are pledged pursuant to the Pledge 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 corporation 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 security interest 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) the Borrower may contribute cash to one or more Wholly-Owned Domestic Subsidiaries formed after the Restatement Effective Date in accordance with Section 8.14, so long as the aggregate amount of such cash so contributed to all such Domestic Subsidiaries does not exceed $3,000,000;
(l) 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 does not exceed $10,000,000;
(m) assets of the Borrower and its Domestic Subsidiaries (other than any Domestic Subsidiary owning assets or having operations in Puerto Rico) constituting non-U.S. operations may be transferred to Wholly-Owned Foreign Subsidiaries of the Borrower;
(n) each of the Borrower and its Subsidiaries may sell assets, provided that (x) the aggregate sale of proceeds from all assets subject to -------- such sales pursuant to this clause (n) shall not exceed $5,000,000 in any fiscal year of the Borrower, (y) any such asset sale is for at least 80% in cash and at fair market value (as determined in good faith by the Board of Directors or senior management of the Borrower) and (z) the Net Proceeds therefrom have either resulted in a permanent reduction to the Total Revolving Loan Commitment as provided in Section 3.03(c) or are reinvested to the extent permitted by Section 3.03(c).
(o) each of the Borrower and its Subsidiaries may sell other assets, provided that the aggregate sale proceeds from all assets subject to such -------- sales pursuant to this clause (o) shall not exceed $500,000 in any fiscal year of the Borrower;
(p) so long as no Default or Event of Default then exists or would result therefrom, the Borrower and its Subsidiaries may acquire assets or the capital stock of any Person (any such acquisition permitted by this clause (p), 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, then either (A) the Person so acquired becomes a Wholly-Owned Subsidiary of the Borrower or (B) such Person is merged with and into the Borrower or a Wholly-Owned Subsidiary of the Borrower (with the Borrower or such Wholly- Owned Subsidiary 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 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) and/or 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 (v) (x) any such Permitted Acquisition (or series of related Permitted Acquisitions) involving an expenditure (with the consideration valued as set forth in clause (iv) above) in excess of $30,000,000 and less than or equal to -54- $50,000,000 (with both of the foregoing amounts to be increased, as of any date, by the Cumulative Income and Equity Amount as determined as of such date (after giving effect to any other transactions that have occurred on such date that would reduce the Cumulative Income and Equity Amount)) shall not be consummated without the prior written consent of the Required Banks unless the Pro Forma Leverage Ratio on the date of such acquisition is less than 2.50:1.00 and (y) any such Permitted Acquisition (or series of related Permitted Acquisitions) involving an expenditure (with the consideration valued as set forth in clause (iv) above) in excess of $50,000,000 (plus, as of any date, the Cumulative Income and Equity Amount as determined as of such date (after giving effect to any other transactions that have occurred on such date that would reduce the Cumulative Income and Equity Amount)) shall not be consummated without the prior written consent of the Required Banks;
(q) any Domestic Subsidiary of the Borrower may transfer assets (other than accounts receivable and 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 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);
(hr) 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 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 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);
(is) any Wholly Owned Domestic Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly other Wholly-Owned Domestic Subsidiary of the Borrower so long as (i) such Wholly Wholly-Owned Domestic Subsidiary is a Guarantor and of 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);
(jt) the Borrower and its Subsidiaries may effect the Designated Real Property Sale, provided that the Designated Real Property Sale is for at -------- least 80% in cash and at fair market value (as determined in good faith by the Board of Directors or senior management of the Borrower);
(u) the Borrower and its Subsidiaries may effect any West Coast Asset Sale, provided that (x) any such West Coast Asset Sale is for at least 80% -------- in cash and at fair market value (as determined in good faith by the Board of Directors or senior management of the Borrower) and (y) the Net Proceeds therefrom have either resulted in a permanent reduction to the Total Revolving Loan Commitment as provided in Section 3.03(c) or are reinvested to the extent permitted by Section 3.03(c);
(v) the Borrower and its Subsidiaries may, in the ordinary course of business, sell, transfer or otherwise dispose of assets (including, without limitation, patents, trademarks, copyrights and know-how) which, in the reasonable judgment of the Borrower or such Subsidiary, are determined to be uneconomical, negligible or obsolete in the conduct of its business;
(I) the Borrower and/or its Subsidiaries may enter into factoring arrangements with respect to accounts receivable arising in Japan in connection with business activities therein, (II) the Borrower and its Domestic Subsidiaries may sell or otherwise transfer accounts receivable between or among themselves in the ordinary course of business, and (III) Foreign Subsidiaries may sell or otherwise transfer accounts receivable between or among themselves in the ordinary course of business;
(x) the Permitted Sale-Leaseback Transactions shall be permitted so long as no Default (I) the Net Proceeds therefrom have either resulted in a permanent reduction to the Total Revolving Loan Commitment as provided in Section 3.03(c) or Event of Default then exists are reinvested to the extent permitted by Section 3.03(c) and (II) the lease obligations created thereby are otherwise permitted under this Agreement;
(y) the Borrower and its subsidiaries may transfer 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 divest of the first day Natural Touch brand name and the assets related thereto, it being understood that such transferor divestiture shall not be subject to the provisions set forth in clause (y) of Section 8.02(n); and
(z) the most recently completed Test Period (including any other Permitted Acquisition that occurred, Borrower 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; sell those assets listed on Annex X, provided that (ix) Holdings shall any such asset sale is for at least 80% in cash and at fair market value (as determined in good faith by the Board of Directors or senior management of the Borrower) and (y) the Net Proceeds therefrom have -------- delivered either resulted in a permanent reduction to the Administrative Agent, at Total Revolving Loan Commitment as provided in Section 3.03(c) or are reinvested to the time of delivery of extent permitted by Section 3.03(c). To the Permitted Acquisition Notice, a certificate of extent 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 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 (jand such Collateral is permitted to be released from the Liens created by the respective Security Document), 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 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
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 at the time of the first day respective transfer and (ii) the aggregate fair market value of all such assets so transferred (determined in good faith by senior management of Holdings) to all such Wholly-Owned Foreign Subsidiaries does not exceed $15,000,000;
(l) the US Borrower and any of its Subsidiaries may sell or otherwise dispose of the most recently completed Test Period capital stock of, or other equity interests in, any of their respective Subsidiaries (including any other Permitted Acquisition that occurredthan the Canadian Borrower or the UK Borrower, and related Indebtedness that was incurred, during the equity interests of which may not be sold or subsequent otherwise disposed of pursuant to such Test Periodthis subsection (l)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted AcquisitionJoint Ventures and Unrestricted Subsidiaries; provided that (i) Holdings shall have -------- delivered to in the Administrative Agent, at the time case of delivery a sale or other disposition of the Permitted Acquisition Notice, a certificate capital stock or other equity interests of any Wholly-Owned Subsidiary of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all US Borrower, 100% of the provisions capital stock or other equity interests of this paragraph (j)such Subsidiary shall be so sold or disposed of, and (ii) Holdings each such sale or disposition shall be for an amount at least equal to the Borrower shall have given fair market value thereof (as determined in good faith by senior management of Holdings), (iii) each such sale results in consideration at least 75% of which (taking into account the Agents amount of cash, the principal amount of any promissory notes and the Banks at least 30 days prior notice fair market value, as determined by Holdings in good faith, of any Permitted Acquisition other consideration) shall be in the form of cash and (each such notice a "Permitted Acquisition Notice"); -----------------------------iv) the aggregate Net Sale Proceeds of all assets sold or otherwise disposed of pursuant to this clause (l) shall not exceed $30,000,000 in the aggregate;
(km) leases or subleases granted by Holdings or the US Borrower and any of its Subsidiaries may enter into agreements to third Persons (i) sell excess capacity at one or more of its facilities or (ii) lease or sublease real property in the ordinary course of business to the extent such property is not interfering used or useful in the business of the US Borrower or its Subsidiaries; provided that any such agreements do not interfere in any material respect with the business operations of Holdings the US Borrower or any of its Subsidiaries or otherwise leave the US Borrower or any of its Subsidiaries with insufficient capacity to meet its own ongoing (and reasonably anticipated) requirements;
(n) the US Borrower or any of its Subsidiaries may effect Permitted Sale-Leaseback Transactions in accordance with the definition thereof; provided that (i) the aggregate amount of all proceeds received by the US Borrower and its Subsidiaries from all Permitted Sale-Leaseback Transactions consummated on and after the Effective Date shall not exceed $25,000,000 and (ii) the Net Sale Proceeds from all such Permitted Sale-Leaseback Transactions are applied to repay Term Loans as provided in Section 2.12(c) and/or reinvested in replacement assets or retained to the extent permitted by Section 2.12(c);
(o) the US Borrower and any of 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 7.02; provided that the US Borrower and any of 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 7.02 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 Loan Document 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 any of its Subsidiaries under any such agreement shall not exceed $7,500,000;
(p) the US Borrower and any of its Subsidiaries may sell or otherwise dispose of assets (excluding capital stock of, or other equity interests in, Subsidiaries;, Joint Ventures and Unrestricted Subsidiaries) during each fiscal year of the US Borrower having an aggregate fair market value not in excess of $35,000,000; provided that, except with respect to asset dispositions or transfers arising out of, or in connection with, the events described in clauses (a) and (b) of the definition of Recovery Event, (i) 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) and (ii) to the extent any such sale or disposition (or any series of related sales or dispositions) generates Net Sale Proceeds (or involves assets the fair market value of which (as determined in good faith by senior management of Holdings) is) equal to or greater than $3,000,000, such sale or disposition (or series of related sales or dispositions) 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, provided, however, that, notwithstanding the foregoing, up to $10,000,000 of such consideration in the aggregate in any fiscal year of the US Borrower may be in the form of (A) assets to be owned by the US Borrower or any of its Wholly-Owned Subsidiaries and used in connection with a Permitted Business and/or (B) 100% of the capital stock of any entity that owns assets used in a Permitted Business, which entity shall, as a result of such acquisition, become a Wholly-Owned Subsidiary of the US Borrower (and, if the Person that sold such assets was (1) a US Credit Party, such Wholly-Owned Subsidiary shall become a US Credit Party or (2) a Foreign Credit Party, such Wholly-Owned Subsidiary shall become a Foreign Credit Party); and
(q) the White Salt Sale. To the extent the Required Lenders waive the provisions of this Section 7.02 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 7.02, such Collateral (unless transferred to the US 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 directing the Collateral Agent to take such actions) as are appropriate in connection therewith.
Appears in 1 contract
Samples: Credit Agreement (Compass Minerals International Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the Borrower The Borrowers will not, and will not permit any of their respective Subsidiaries other Credit Party to, wind up, liquidate or dissolve its affairs affairs, or enter into any transaction of merger or consolidation, or convey, sellsell or otherwise dispose of all or any part of its property or assets (other than obsolete equipment or excess equipment in the ordinary course of business) or purchase, lease or otherwise dispose acquire all or any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, leases, materials and equipment 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 any Subsidiary Guarantor may be merged or consolidated with or into, or be liquidated into, the Partnership (so long as the Partnership is the surviving entity) or another Subsidiary Guarantor, or all or any part of the business, properties and its Subsidiaries mayassets of a Subsidiary Guarantor may be conveyed, leased, sold or transferred to the Partnership or any Subsidiary Guarantor;
(b) Project Costs may be incurred in connection with the construction of the Project provided that the same are provided for in the Budget;
(c) after the Commencement Date, Consolidated Capital Expenditures will be permitted to the extent within the limitations set forth in Section 7.05 hereof;
(d) the investments, acquisitions and transfers or dispositions of properties permitted pursuant to Section 7.06;
(e) the Partnership may lease (as lessee or lessor, enter into operating leases lessee) personal property in the ordinary course of business with respect to real or personal property(so long as such lease does not create a Capitalized Lease Obligation not otherwise permitted by Section 7.04(d));
(bf) Capital Expenditures licenses or sublicenses by Holdings and its Subsidiaries to the extent not in violation Partnership 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 provided that such licenses or sublicenses shall not interfere 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 business 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 licenseCredit Parties;
(g) any Wholly Owned Subsidiary of to the Borrower extent it has not done so prior to the Closing Date, the Partnership may transfer assets its rights under the HHC Option Agreement to SCGC for nominal consideration to the Borrower or extent otherwise permitted to any other Wholly Owned Subsidiary of do so by 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)terms thereof;
(h) any Wholly Owned Subsidiary the Partnership may transfer its rights under the HHC Agreements of first offer on four future resort casino sites in the Summxxxxx xxxmunity to a limited partnership or limited liability company at least 85% controlled by SCGC (directly or indirectly) for an arms length (as determined in good faith by the Board of Directors of the Borrower may merge with General Partner) minority limited partnership or member interest therein provided that such transferee remains so owned and into, or be dissolved or liquidated into, the Borrower so long as (i) the Borrower is the surviving corporation of does not further transfer 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 rights it obtains from 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)Partnership;
(i) any Wholly Owned Subsidiary the Partnership may enter into leases as lessor of restaurant and other concessionary space at the Borrower may merge Project in accordance with customary commercial practice 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);on commercially reasonable terms; and
(j) so long as other sales or dispositions of assets provided that (v) no Default or Event of Default is then exists or would result therefrom in existence, (including giving pro forma effect to w) the aggregate fair market value for all properties the subject of such acquisition sales and --- ----- dispositions shall not exceed $1,000,000 in 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 fiscal year of the first day Partnership, (x) the consideration for each such sale shall be in an amount in cash at least equal to the fair market value thereof, (y) the Net Cash Proceeds of any such sale are applied to repay the Loans to the extent required by Section 3.02(A)(c) and (z) the sale or disposition of the most recently completed Test Period (including capital stock 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 a Permitted Acquisition; provided that (i) Holdings shall have -------- delivered to the Administrative Agent, at the time of delivery Subsidiary 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 Partnership shall be prohibited unless it is for all of the provisions outstanding capital stock 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;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 the Credit Parties 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 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 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 from such dispositions, sales, leases or transfers pursuant to clause (A) or (B) 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 Cash Proceeds;
(iv) the sale, lease or transfer of property or assets between or among (A) the Borrower and the Subsidiary Guarantors; (B) the Specified Non-Guarantor Subsidiaries or (C) the Foreign Subsidiaries of the Company and other Foreign Subsidiaries of the Company;
(v) the termination of any Hedging Agreement permitted pursuant to Section 6.1(f);
(vi) the factoring or disposition of receivables by SRL in connection with the Indebtedness of SRL set forth on Schedule 6.1(b);
(vii) the sale of any assets set forth on Schedule 6.4(a);
(viii) the liquidation or dissolution of (A) any Domestic Subsidiary of the Company that has no assets or that has sold, disposed of or otherwise transferred all of its assets to the Borrower or a Subsidiary Guarantor or (B) any Foreign Subsidiary of the Company that has no assets or that has sold, disposed of or otherwise transferred all of its assets to the Borrower or a Subsidiary Guarantor or another Foreign Subsidiary; provided that no such liquidation or dissolution shall be permitted unless the Administrative Agent shall continue to have or shall have concurrently received a first priority, perfected security interest in 100% of the Capital Stock of the Borrower from the parent company of the Borrower after giving effect to such liquidation or dissolution on terms satisfactory to the Administrative Agent; and
(ix) the sale, lease, transfer or other disposition of property or assets not to exceed $40,000,000 in the aggregate in any fiscal year and $60,000,000 in the aggregate during the term of this Agreement; provided that, with respect to any sale, lease, transfer or other disposition of property or assets in excess of $5,000,000, the Credit Parties shall demonstrate, to the reasonable satisfaction of the Administrative Agent, that after giving effect to such sale, lease, transfer or other disposition on a Pro Forma Basis, the Credit Parties are in compliance with each of the financial covenants set forth in Section 5.9; provided that (1) in the case of clauses (i), (ii), (iii) and (vii) 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 and (2) in the case of clause (ix) above, (y) for any sale, lease, transfer, or other disposition of property or assets not to exceed $5,000,000 in the aggregate in any fiscal year, at least 50% of the consideration received therefore by the Borrower or any other Credit Party is in the form of cash or Cash Equivalents and (z) for any other sale, lease, transfer or other disposition of property or assets permitted under clause (ix) 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,
(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 purchases, leases or other acquisitions of inventory, leases, materials, property and equipment in the ordinary course of business, except as otherwise limited or prohibited herein) 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 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 6.5 and (iiB) the security interests granted to merger or consolidation of (I) a Credit Party (other than 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);
(hCompany) any Wholly Owned Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, into another Credit Party (other than 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 liquidationCompany);
(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 (iy) Holdings if the Borrower is a party thereto, the Borrower will be the surviving corporation and (z) the Administrative Agent’s Liens with respect to the Collateral of each Credit Party involved in such merger or consolidation shall remain continuously perfected; (II) a Foreign Subsidiary with and into another Foreign Subsidiary, (III) a Specified Non-Guarantor Subsidiary with and into another Specified Non-Guarantor Subsidiary or a Credit Party (other than the Company) and (IV) an Intermediate Holding Company with and into another Intermediate Holding Company or a Credit Party; provided that no such merger or consolidation shall be permitted unless the Administrative Agent shall continue to have or shall have -------- delivered concurrently received a first priority, perfected security interest in 100% of the Capital Stock of the Borrower from the parent company of the Borrower after giving effect to such merger or consolidation on terms satisfactory 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 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 may, in the ordinary course of business, 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 interests, if any, 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 which 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 an Authorized Officer of Holdings showing compliance with Section 8.01(l) (in reasonable detail as to pro forma calculationsa "Permitted Acquisition --------------------- Compliance Certificate") 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 10 days prior notice of any Permitted Acquisition (each such notice a "Permitted Acquisition Notice"); -----------------------------provided ---------------------------- -------- however, that with respect to Permitted Acquisitions in respect of which ------- the total consideration payable is less than $40,000,000 such Permitted Acquisition Notice and Permitted Acquisition Compliance Certificate of Holdings may be delivered to the Agents promptly after the closing of such Permitted Acquisition; and provided, further, that with respect to -------- ------- Permitted Acquisitions in respect of which the total consideration is less than $10,000,000, the Permitted Acquisition Compliance Certificate may be delivered at the time of delivery of the financial statements provided for in Section 8.01(b) and (c).
(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 its 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 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 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;
(v) the sale, lease or transfer of other property or assets between Credit Parties; and
(vi) the sale, lease or transfer of property or assets not to exceed $40,000,000 in the aggregate in any fiscal year; provided, that, in the case of clauses (i), (iii) and (v) 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, 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 Credit Party or any of its Subsidiaries pursuant to the Security Agreement in the intellectual property covered by such license;
(g) any Wholly Owned other Subsidiary of 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 will not, and will not permit any of their respective Subsidiaries Subsidiary to, wind up, liquidate or dissolve its affairs 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 or worn-out or obsolete equipment no longer needed in the conduct of the business, in each case in the ordinary course of business) or purchase, 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 lease or otherwise acquire (in one all 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, supplies and equipment equipment, in each case in the ordinary course of business) or agree to do any of the foregoing at any Personfuture time without a contingency in any such agreement relating to either (x) obtaining any required approval hereunder or (y) the repayment in cash in full of all the Obligations and the termination of all Commitments prior to or contemporaneously with the consummation of the respective transaction, except that the following shall be permitted:
(ai) Holdings any Subsidiary of the Borrower may be merged or consolidated with or into, or be liquidated into, a Qualified Credit Party (so long as a Qualified Credit Party (which must be the Borrower in the case of any such transaction with the Borrower) is the surviving corporation), and its Subsidiaries (ii) the Borrower or any Subsidiary thereof may, as lessee or lessor, enter into operating leases in the ordinary course of business consistent with respect past practices, convey, sell, lease or otherwise transfer all or any part of its business, properties and assets to real or personal propertya Qualified Credit Party;
(b) Consolidated Capital Expenditures may be made by Holdings the Borrower and its Subsidiaries to the extent not within the limitations set forth in violation of Section 9.078.05 hereof, and Reinvestment Assets may be acquired as specifically permitted by Section 4.02(A)(c) hereof;
(c) the advancesinvestments, investments acquisitions and loans transfers or dispositions of properties permitted pursuant to Section 9.058.06 and Dividends permitted pursuant to Section 8.08;
(d) Holdings each of the Borrower and any Subsidiary may lease (as lessee) real or personal property (but not pursuant to sale-leaseback transactions) in the ordinary course of business (so long as such lease does not create a Capitalized Lease Obligation not otherwise permitted by Section 8.04(c) and (j));
(e) licenses or sublicenses by the Borrower and its Subsidiaries may sell or discount, in each case without recourse, accounts receivable arising of intellectual property in the ordinary course of business, provided, that such licenses or sublicenses shall not interfere with the business of the Borrower or any Subsidiary except, in the case of any such license or sublicense by a Foreign Subsidiary, as is not reasonably likely to have Material Adverse Effect;
(f) sales (but not pursuant to sale-leaseback transactions) of assets by the Borrower and its Subsidiaries to Persons other than Holdings or a Subsidiary thereof so long as (A) the assets sold comprise all or a portion of the Industrial Chain Business (or Equity Interests in Persons whose only assets at the time of such sale comprise all or a portion of the Industrial Chain Business) and/or (B) to the extent any assets sold do not qualify pursuant to the preceding clause (A), the aggregate Net Cash Proceeds received from all sales permitted by this sub-clause (B) do not exceed $30,000,000 in the aggregate, provided that (1) to the extent the Net Cash Proceeds received in connection with any sale pursuant to this Section 8.02(f) exceed $1,000,000, such sale shall result in the compromise Borrower or collection the respective Subsidiary receiving consideration in an amount at least equal to the fair market value of the assets sold, which consideration shall consist of at least 75% cash and/or Cash Equivalents (with the assumption of Indebtedness and the sale for cash within 30 days of receipt of securities received calculated as cash), (2) the Net Cash Proceeds of each sale pursuant to this Section 8.02(f) are applied to repay the Loans to the extent required by Section 4.02(A)(c) and (3) in the case of a sale or disposition of the Equity Interests of any Subsidiary of the Borrower (or a Person which was a Subsidiary of the Borrower prior to such sale or disposition) which represent less than 100% of the Equity Interests in such Subsidiary owned by Holdings and its Subsidiaries (unless the sale or disposition represents a subsequent sale of Equity Interests in a Subsidiary which previously had Equity Interests sold after the Restatement Effective Date pursuant to this Section 8.02(f)), then the amount by which the fair market value (as determined in good faith by the Borrower) of all the Equity Interests in such Subsidiary owned by the Borrower and its Subsidiaries immediately before such sale or disposition exceeds the Net Cash Proceeds received by the Borrower and its Subsidiaries from such disposition, shall be deemed to constitute an investment which shall only be permitted if same does not exceed the Permitted JV Investment Amount at the time of such sale or disposition; and, provided further, that the sale or disposition of Equity Interests of the Borrower shall be prohibited, except that 100% of the Equity Interests of the Borrower may be transferred to Intermediate Holdco contemporaneously with or after the establishment of same in accordance with the definition thereof;
(eg) the Acquisition;
(h) leases and subleases permitted under Section 8.03(g) and other Liens permitted pursuant to Section 8.03 (other than clause (t) thereof);
(i) the Borrower and any of its Domestic Subsidiaries may convey, sell, lease or otherwise transfer assets (other than Equity Interests in any Domestic Subsidiary) to any Foreign Subsidiary, provided that the fair market value (as determined by the Borrower in good faith) of the assets so conveyed, sold or transferred (net of the amount of any cash consideration received therefor) does not exceed the Permitted Foreign Investment Amount at the time of the respective conveyance, sale or transfer;
(j) 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, liquidate Cash Equivalents in the ordinary course of business, license, as licensor or licensee, patents, trademarks, copyrights ;
(k) Holdings and know-how to third Persons and to one another, so long as any such license by Holdings or its Subsidiaries may pre-pay rent under leases and may purchase pre-paid insurance in its capacity as licensor is permitted to be assigned pursuant to the Security Agreement ordinary course of business;
(to l) the extent that a security interest in such patents, trademarks, copyrights Borrower and know- how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries pursuant may convey, sell, lease or otherwise transfer assets to any Joint Venture, provided that the Security Agreement fair market value (as determined by the Borrower in good faith) of the intellectual property covered by assets so conveyed, sold, leased or otherwise transferred (net of the amount of any cash consideration received therefor) does not exceed the Permitted JV Investment Amount at the time of the respective such licenseconveyance, sale or transfer;
(gm) any Wholly Owned Subsidiary Foreign Subsidiaries may sell assets pursuant to Sale/Leaseback Transactions so long as at no time shall the aggregate amount of the Borrower Attributable Debt arising from such Sale/Leaseback Transactions, when added (without duplication) to the Permitted Factoring Transaction Outstandings and the aggregate principal amount of Indebtedness outstanding pursuant to Section 8.04(i) at such time, exceed the Permitted Foreign Subsidiary Debt Amount as then in effect;
(n) (i) Foreign Subsidiaries may convey, sell, lease or otherwise 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 Foreign Subsidiaries and (ii) the security interests granted Non-Wholly Owned Domestic Subsidiaries may convey, sell, lease or otherwise transfer assets 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)other Non-Wholly Owned Domestic Subsidiaries;
(ho) any Wholly Owned Subsidiary of the Borrower Foreign Subsidiaries may merge with sell receivables and into, or be dissolved or liquidated into, the Borrower related assets pursuant to factoring arrangements so long as at no time shall the aggregate amount of Permitted Factoring Transaction Outstandings arising from such factoring arrangements, when added (iwithout duplication) to the Attributable Debt arising from Sale/Leaseback Transactions at such time and the aggregate principal amount of Indebtedness outstanding pursuant to Section 8.04(i) at such time, exceed the Permitted Foreign Subsidiary Debt Amount as then in effect; and
(p) the Borrower is the surviving corporation of any such merger, dissolution or liquidation and its Subsidiaries may sell (iiwithout recourse) the security interests granted receivables (and related assets) arising from goods and services provided to the Collateral Agent for the benefit of the Secured Creditors Honeywell International Inc. pursuant to the Security Documents factoring arrangements entered into 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 business consistent with and into, or be dissolved or liquidated into, any Wholly Owned Subsidiary of the Borrower past practices so long as (i) at no time shall the aggregate amount of Permitted Honeywell Receivables Transaction Outstandings arising from 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;factoring arrangements exceed $1,500,000.
Appears in 1 contract
Samples: Credit Agreement (RBS Global Inc)
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 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;
(d) the US 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) that, in the reasonable opinion of such Person, are obsolete, uneconomic or no longer useful or desirable 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 (a) and (b) of the definition of Recovery Event, (i) 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), (ii) to the extent any such sale or disposition (or any series of related sales or 120 dispositions) generates Net Sale Proceeds (or involves assets the fair market value of which (as determined in good faith by senior management of Holdings) is) equal to or greater than $3,000,000, such sale or disposition (or series of related sales or dispositions) 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, PROVIDED, HOWEVER, that, notwithstanding the foregoing, up to $10,000,000 of such consideration in the aggregate in any fiscal year of the US Borrower may be in the form of (A) assets to be owned by the US Borrower or any of its Wholly-Owned Subsidiaries and used in connection with a Permitted Business and/or (B) 100% of the compromise capital stock of any entity that owns assets used in a Permitted Business, which entity shall, as a result of such acquisition, become a Wholly-Owned Subsidiary of the US Borrower (and, if the Person that sold such assets was (1) a US Credit Party, such Wholly-Owned Subsidiary shall become a US Credit Party or collection thereof(2) a Foreign Credit Party, such Wholly-Owned Subsidiary shall become a Foreign Credit Party), and PROVIDED that the acquisition of such assets by the purchaser subject to a Capitalized Lease Obligation or other purchase money obligation shall be deemed to be cash consideration in an amount equal to the aggregate amount of such Capitalized Lease Obligations or other purchase money obligations assumed, (iii) the aggregate Net Sale Proceeds (including for this purpose the fair market value of all non-cash proceeds received as a result of an Asset Sale) 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 and/or assumed in connection with all assets sold or otherwise disposed of pursuant to this clause (d), shall not exceed $15,000,000 in the aggregate in any fiscal year of the US Borrower, and (iv) in the case of any sale or disposition of an asset constituting an Asset Sale, the Net Sale Proceeds therefrom are either applied to repay Term Loans and/or reduce the Total Revolving Loan Commitment as provided in Section 2.12(c) or reinvested in replacement assets or retained to the extent permitted by Section 2.12(c);
(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 any Subsidiary of the item of equipment so sold or exchanged;
(f) Holdings and its Subsidiaries mayUS Borrower may convey, in the ordinary course of businesslease, 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; 121
(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 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 6.14;
(j) the Merger shall be permitted to the extent consummated in accordance with the relevant requirements of Section 3.08;
(k) 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;
(l) 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 122 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 at the time of the first day respective transfer and (ii) the aggregate fair market value of all such assets so transferred (determined in good faith by senior management of Holdings) to all such Wholly-Owned Foreign Subsidiaries does not exceed $15,000,000;
(m) the US Borrower and any of its Subsidiaries may sell or otherwise dispose of the most recently completed Test Period capital stock of, or other equity interests in, any of their respective Subsidiaries (including any other Permitted Acquisition that occurredthan the Canadian Borrower or the UK Borrower, and related Indebtedness that was incurred, during the equity interests of which may not be sold or subsequent otherwise disposed of pursuant to such Test Periodthis subsection (m)), Holdings or any of its Wholly Owned Subsidiaries may consummate a Permitted AcquisitionJoint Ventures and Unrestricted Subsidiaries; provided that (i) Holdings shall have -------- delivered to in the Administrative Agent, at the time case of delivery a sale or other disposition of the Permitted Acquisition Notice, a certificate capital stock or other equity interests of any Wholly-Owned Subsidiary of the Chief Financial Officer of Holdings showing compliance (in reasonable detail as to pro forma calculations) with all US Borrower, 100% of the provisions capital stock or other equity interests of this paragraph (j)such Subsidiary shall be so sold or disposed of, and (ii) Holdings each such sale or disposition shall be for an amount at least equal to the Borrower shall have given fair market value thereof (as determined in good faith by senior management of Holdings), (iii) each such sale results in consideration at least 75% of which (taking into account the Agents amount of cash, the principal amount of any promissory notes and the Banks at least 30 days prior notice fair market value, as determined by Holdings in good faith, of any Permitted Acquisition other consideration) shall be in the form of cash, (each such notice a "Permitted Acquisition Notice"iv) the aggregate Net Sale Proceeds of all assets sold or otherwise disposed of pursuant to this clause (m) shall not exceed $30,000,000 in the aggregate and (v) the Net Sale Proceeds therefrom are applied to repay Term Loans and/or reduce the Total Revolving Loan Commitment as provided in Section 2.12(c) and/or reinvested in replacement assets or retained to the extent permitted by Section 2.12(c); -----------------------------;
(kn) leases or subleases granted by Holdings or the US Borrower and any of its Subsidiaries may enter into agreements to third Persons (i) sell excess capacity at one or more of its facilities or (ii) lease or sublease real property in the ordinary course of business to the extent such property is not interfering used or useful in the business of the US Borrower or its Subsidiaries; PROVIDED that any such agreements do not interfere in any material respect with the business operations of Holdings the US Borrower or any of its SubsidiariesSubsidiaries or otherwise leave the US Borrower or any of its Subsidiaries with insufficient capacity to meet its own ongoing (and reasonably anticipated) requirements;
(o) the US Borrower or any of its Subsidiaries may effect Permitted Sale-Leaseback Transactions in accordance with the definition thereof; PROVIDED that (i) the aggregate amount of all proceeds received by the US Borrower and its Subsidiaries from all Permitted Sale-Leaseback Transactions consummated on and after the Effective Date shall not exceed $25,000,000 and (ii) the Net Sale Proceeds from all such Permitted Sale-Leaseback Transactions are applied to repay Term Loans as provided in Section 2.12(c) and/or reinvested in replacement assets or retained to the extent permitted by Section 2.12(c); and
(p) the US Borrower and any of 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 7.02; PROVIDED that the US Borrower and any of 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 7.02 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 123 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 any of its Subsidiaries under any such agreement shall not exceed $7,500,000. To the extent the Required Lenders waive the provisions of this Section 7.02 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 7.02, such Collateral (unless transferred to the US 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 will not permit any of their respective Subsidiaries Subsidiary to, 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 (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) or purchase, 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 lease or otherwise acquire (in one all or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, leases, materials and equipment in the ordinary course of business) or agree to do any of the foregoing at any Personfuture time, except that the following shall be permitted:
(a) Holdings any Subsidiary of the Borrower may be merged or consolidated with or into, or be liquidated into, the Borrower or a Subsidiary Guarantor (so long as the Borrower or such Subsidiary Guarantor is the surviving corporation), or all or any part of its business, properties and its Subsidiaries mayassets may be conveyed, leased, sold or transferred to the Borrower or any Subsidiary Guarantor; provided, -------- however, that neither the Borrower nor any Subsidiary Guarantor may be a party ------- to any merger, consolidation or liquidation otherwise permitted by this clause (a) involving a Subsidiary that is not a Wholly-Owned Subsidiary of the Borrower;
(b) capital expenditures permitted to be incurred by Section 8.05; ------------
(c) investments and acquisitions of properties permitted pursuant to Section 8.06; ------------
(d) each of the Borrower and the Subsidiary Guarantors may lease (as lessee lessee) real or lessor, enter into operating leases personal property in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures so long as such lease does not create a Capitalized Lease Obligation not otherwise permitted 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;8.04(c)); ---------------
(e) Holdings and its Subsidiaries may sell other sales or exchange specific items dispositions of machinery assets constituting (i) obsolete or worn-out equipment, so long as (ii) the proceeds Borrower's facility located in Avon, Massachusetts, and (iii) other Asset Sales but not including any Real Property or facility; provided, however, that the aggregate Net Cash Proceeds received from all such -------- ------- Asset Sales permitted under this clause (e)(iii) shall not exceed $1,000,000 in the aggregate during the term of this Agreement, provided further, however that ---------------- ------- each such sale or exchange is used permitted pursuant to acquire this Section 8.02(e) shall be in an amount --------------- at least equal to the fair market value thereof and for proceeds consisting solely of not less than (A) 80% cash and results within 180 days (B) seller indebtedness evidenced by promissory notes which notes shall be pledged and delivered to the Agent pursuant to a pledge agreement in form and substance satisfactory to the Agent, and the Net Cash Proceeds of any such sale are applied to repay the Loans to the extent required by Section 4.02(A)(c); and, provided further, that the sale or exchange in the acquisition of) replacement items of machinery or equipment which are the functional equivalent ------------------ -------- ------- disposition of the item capital stock of equipment so sold or exchangedany Subsidiary Guarantor shall be prohibited;
(f) Holdings and its Subsidiaries may, other sales or dispositions of assets 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 (each case to the extent that a security interest the Required Lenders have consented in writing thereto and subject to such conditions as may be set forth 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;consent; and
(g) any Wholly Owned Subsidiary of the Borrower may transfer assets to be liquidated into the Borrower or to any other Wholly Owned a 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;Guarantor.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. Holdings and the The Borrower will shall not, and will shall not permit any Credit Party or any of their its 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 sales, transfers or other dispositions of businessSpecial Inventory, including sales of inventory Special Inventory on consignment in the ordinary course of businessconsignment), 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 the Credit Parties may, as lessee or lessor, enter into operating leases in the ordinary course of business with respect to real or personal propertyproperty other than Rigs and Rig Accessories;
(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 9.058.5;
(dc) 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 Credit Parties 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 the 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- know-how is granted thereunder) and does not otherwise prohibit the granting of a Lien by Holdings or any of its Subsidiaries the Credit Party pursuant to the Security Agreement in the intellectual property covered by such license;
(gd) any Wholly Owned Subsidiary of the Borrower Credit Party may transfer assets to the Borrower or to without any other Wholly Owned Subsidiary of the Borrowerliabilities relating thereto, so as 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: Loan Agreement (Grey Wolf Inc)
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 (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 permitted pursuant to Section 9.058.05 OF THIS EXHIBIT E;
(d) Holdings the Company and its Subsidiaries may sell other assets 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 $5,000,000 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 without recourse, accounts receivable arising in the ordinary course of business, but only in connection with the compromise or collection thereof;
(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 exchanged;
(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 Foreign Subsidiary of the Borrower Company may be transferred to the Company or any of its Subsidiaries, and any Foreign 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;
(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, 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 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 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 Subsidiary 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 OF THIS EXHIBIT E, as the case may be, and (iv) after giving effect thereto, the Unutilized Revolving Loan Commitment would be at least $15,000,000; 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(h)) OF THIS EXHIBIT E 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 Banks; and PROVIDED, FURTHER, that the Company shall have -------- delivered to the Administrative Agent, at the time of delivery of the Permitted Acquisition Notice, LANDLORD 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, including any arm's-length lease by the Company or any Subsidiary of the Company of up to 50,000 square feet of its Wallingford, Connecticut facility;
(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; and
(o) inactive" or "shell" Subsidiaries may be dissolved or otherwise liquidated. To the extent the LANDLORD waiveS 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 LANDLORD shall take such actions as are appropriate in connection therewith.
Appears in 1 contract
Samples: Guaranty and Suretyship Agreement (Superior Telecom 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 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 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 inventory, obsolete equipment or excess equipment, in the ordinary course of business, including sales of inventory on consignment each case 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, may lease as lessee real or lessor, enter into operating leases personal property in the ordinary course of business and otherwise in compliance with respect to real or personal propertythis Agreement;
(b) Consolidated Capital Expenditures by Holdings the Borrower and its Subsidiaries to the extent not in violation of Section 9.078.05;
(c) the advances, investments investments, loans and loans other transactions permitted pursuant to Section 9.058.06;
(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 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 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 anotherPersons, 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- 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;
(gf) any Wholly Owned Subsidiary of the Borrower Guarantor may transfer assets to the Borrower be merged with 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, or transfer any of its assets to the Borrower so long as or any other Subsidiary Guarantor;
(ig) the sale or disposition by the Borrower is and/or any Subsidiary of assets not otherwise permitted to be sold or disposed of under this Section 8.02 with an aggregate fair market value of not in excess of $100,000 in any year;
(h) the surviving corporation sale or disposition by the Borrower and/or its Subsidiaries of assets not otherwise permitted to be sold or disposed of under this Section 8.02 (including by way of mergers and consolidations), PROVIDED that (x) the net cash consideration received from all such sales and dispositions in any calendar year shall not exceed an amount equal to 2.5% of Total Assets (determined at the time of any such merger, dissolution sale or liquidation disposition) and (iiy) the security interests granted proceeds of each such sale shall be in an amount at least equal to the fair market value thereof, which non-contingent sale proceeds shall consist of at least 80% cash (with any promissory note or other evidence of Indebtedness received to be pledged to the Collateral Agent for in accordance with the benefit Pledge Agreement), and PROVIDED FURTHER, that any permitted sale or disposition of the Secured Creditors pursuant to capital stock of any Subsidiary shall be prohibited unless it is for all the Security Documents in the assets outstanding capital stock of such Wholly Owned Subsidiary shall remain in full force owned by the Borrower and effect and perfected (to at least the same extent as in effect immediately prior to such merger, dissolution or liquidation)its Subsidiaries;
(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 AcquisitionCompleted 1997 Acquisitions; 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;and
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 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 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) 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) 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 be merged 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 consolidated with and or into, or be dissolved or liquidated into, the Borrower or any other Subsidiary of the Borrower (so long as (i) the Borrower or any other Subsidiary of the Borrower is the surviving corporation corporation), or all or any part of the business, properties and assets of any such mergerSubsidiary may be conveyed, dissolution leased, sold or liquidation and (ii) the security interests granted transferred 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 Borrower or liquidation);
(i) any Wholly Owned other 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)Borrower;
(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 (Consumers Us 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 (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 SNIG 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 convey, sell, lease sell 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 including the ordinary course sale of businesscapital stock of any of its Subsidiaries, including sales but excluding any sale or disposition of inventory on consignment property or assets in the ordinary course of business), or enter into any partnershipspurchase, joint ventures or sale-leaseback transactions, or purchase lease or otherwise acquire (in one transaction or a series of related transactions) all or any part of the property or assets of any Person (other than purchases excluding any purchases, leases or other acquisitions of inventoryproperty or assets in, materials and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:for use
(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 neither PRACO nor any of its Subsidiaries may merge, such Subsidiary is a Guarantor and (ii) the security interests granted to the Collateral Agent for the benefit consolidate or liquidate into SNIC 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 no Regulated Insurance Company shall enter into any Financial Reinsurance Agreements;
(f) The Borrower or any of its Subsidiaries may enter into leases of property or assets in the ordinary course of business not otherwise in violation of this Agreement;
(g) each of the Borrower and its Subsidiaries may merge with and intosell assets, or provided that (w) each such sale shall be dissolved or liquidated intofor 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 Borrower so long as form of cash, (iy) the Borrower is the surviving corporation of aggregate sale proceeds from all assets subject to such sales pursuant to this clause (g) in any such merger, dissolution or liquidation and (ii) the security interests granted to the Collateral Agent for the benefit fiscal year shall not exceed 10% 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 Consolidated Net Worth 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 such fiscal year provided that (i) on a pro forma basis (the pro forma adjustments made by the Borrower pursuant to this clause (i) shall be subject to the reasonable satisfaction of the Agent) determined as if such asset sale 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 with respect to any asset sale, SNIG and its Subsidiaries would have been in compliance with Sections 7.11 through 7.16 of this Agreement as of, or for the relevant period ended on, the last day of such fiscal quarter and (including any other Permitted Acquisition that occurred, and related Indebtedness that was incurred, during or subsequent to such Test Period)ii) on a pro forma basis (the pro forma adjustments made by SNIG pursuant to
(h) SNIG may reincorporate in Delaware by merging with a newly formed Delaware corporation ("Holdings"), with Holdings or any to be the surviving corporation of its Wholly Owned Subsidiaries may consummate a Permitted Acquisition; such merger (the "Reincorporation Merger"), provided that (i) Holdings shall have -------- delivered no assets (other than nominal capital) or liabilities prior to such merger, (ii) Holdings shall be renamed Superior National Insurance Group, Inc. immediately following such merger and (iii) Holdings shall execute and deliver to the Administrative AgentAgent an assumption acknowledgment (the "SNIG Assumption Acknowledgment") substantially in the form of Exhibit I; and
(i) the sale, at transfer or disposition of any property of PRACO located in Florida, Texas, Alabama or Georgia in an amount not to exceed $1,000,000. To the time of delivery of extent the Permitted Acquisition Notice, a certificate of Required Banks (or all the Chief Financial Officer of Holdings showing compliance (in reasonable detail as Banks to pro forma calculationsthe 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 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 Company will not, and will not permit any of their respective Subsidiaries Subsidiary to, 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 (or agree to do any of the foregoing at any future time) all or any part of its property or assets (other than inventory or obsolete equipment or excess equipment no longer needed in the conduct of the business in the ordinary course of business) or purchase, 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 lease or otherwise acquire (in one all or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, leases, materials and equipment in the ordinary course of business) or agree to do any of the foregoing at any Personfuture time, except that the following shall be permitted:
(a) Holdings any entity that is a member of the Zurn Group or the Eljer Groxx xay be merged or consolidated with or into, or be liquidated into, another member of said Group (so long as a Borrower is the surviving entity to the extent involving a Borrower or a Subsidiary Guarantor is the surviving entity to the extent involving a Subsidiary Guarantor), or all or any part of its business, properties and assets of such entity may be conveyed, leased, sold or transferred to another member of such Group that is a Borrower or a Subsidiary Guarantor, provided that no such merger, consolidation, liquidation, conveyance, lease, sale or transfer consummated prior to the Plan Confirmation Date may involve Brass or its assets or liabilities;
(b) capital expenditures to the extent within the limitations set forth in Section 8.05 hereof;
(c) the investments, acquisitions and transfers or dispositions of properties permitted pursuant to Section 8.06;
(d) each of the Company and its Subsidiaries may, may lease (as lessee lessee) real or lessor, enter into operating leases personal property in the ordinary course of business with respect to real or personal property;
(b) Capital Expenditures so long as such lease does not create a Capitalized Lease Obligation not otherwise permitted 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;
8.04(c)); -39- (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 AcquisitionSales; 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;and
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
