Consolidation, Merger, Sale or Purchase of Assets, etc. The ------------------------------------------------------- Borrower will not, and will not permit any Subsidiary to, wind up, liquidate or dissolve its affairs, or enter into any transaction of merger or consolidation, sell or otherwise dispose of 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, lease or otherwise 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, except that the following shall be permitted: (a) 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 assets may be conveyed, leased, sold or transferred to the Borrower or any Subsidiary Guarantor (or any other Subsidiary), provided 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; (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 Borrower and the Subsidiary Guarantors may lease (as lessee) real or personal property 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(d)); (e) licenses or sublicenses by the Borrower and its Subsidiary Guarantors of software, customer lists, trademarks and other 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 Guarantor; (f) other sales or dispositions of assets in the ordinary course of business, provided that (w) the aggregate Net Cash Proceeds received from -------- all such sales and dispositions shall not exceed $1,500,000 in any fiscal year of the Borrower, (x) each such sale shall be in an amount at least equal to the fair market value thereof (as determined by the Board of Directors of the Borrower in the case of sales in excess of $500,000) and for proceeds consisting solely of not less than (A) 80% cash and (B) seller indebtedness evidenced by promissory notes which notes shall be pledged and delivered to the Collateral Agent pursuant to the Borrower Pledge Agreement, and (y) 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 disposition of the capital stock of (i) the ------- Borrower or any Subsidiary Guarantor shall be prohibited and (ii) any Subsidiary of the Borrower (other than a Subsidiary Guarantor) shall be prohibited unless it is for all of the outstanding capital stock of such Subsidiary owned by the Borrower; (g) other sales or dispositions of assets in each case to the extent the Required Lenders have consented in writing thereto and subject to such conditions as may be set forth in such consent; (h) any Subsidiary may be liquidated into the Borrower or a Subsidiary Guarantor; and (i) acquisitions and dispositions of Permitted Acquisitions, Permitted Investments and Permitted Joint Ventures in accordance with Section 8.06(g).
Appears in 1 contract
Samples: Credit Agreement (Hci Direct Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. The ------------------------------------------------------- Borrower will not, and nor will not it permit any Subsidiary of its Subsidiaries to:
(a) except in connection with a disposition of assets permitted by the terms of subsection (c) below, wind updissolve, liquidate or dissolve its wind up their affairs, or ;
(b) enter into any transaction of merger or consolidation; provided, sell however, that, so long as no Default or otherwise dispose Event of all Default would be directly or any part of its property or assets indirectly caused as a result thereof, (other than inventory or obsolete equipment or excess equipment no longer needed in the conduct of the business in the ordinary course of businessi) or purchase, lease or otherwise 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, except that the following shall be permitted:
(a) any Subsidiary of the Borrower may be merged merge or consolidated consolidate with or into, or be liquidated into, any of its Subsidiaries provided that 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 assets may be conveyed, leased, sold or transferred to the Borrower or any Subsidiary Guarantor (or any other Subsidiary), provided 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;
(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 Borrower and the Subsidiary Guarantors may lease (as lessee) real or personal property 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(d));
(e) licenses or sublicenses by the Borrower and its Subsidiary Guarantors of software, customer lists, trademarks and other 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 Guarantor;
(f) other sales or dispositions of assets in the ordinary course of business, provided that (w) the aggregate Net Cash Proceeds received from -------- all such sales and dispositions shall not exceed $1,500,000 in any fiscal year of the Borrower, (x) each such sale shall be in an amount at least equal to the fair market value thereof (as determined by the Board of Directors of the Borrower in the case of sales in excess of $500,000) and for proceeds consisting solely of not less than (A) 80% cash and (B) seller indebtedness evidenced by promissory notes which notes shall be pledged and delivered to the Collateral Agent pursuant to the Borrower Pledge Agreement, and (y) 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 disposition of the capital stock of (i) the ------- Borrower or any Subsidiary Guarantor shall be prohibited and ; (ii) any Subsidiary of the Borrower (may merge or consolidate with any other than a Subsidiary Guarantor) shall be prohibited unless it is for all of the outstanding capital stock Borrower, provided after giving effect to such merger or consolidation, no Default or Event of such Subsidiary owned by the BorrowerDefault would exist hereunder;
(gc) sell, lease, transfer or otherwise dispose of any Property or Subsidiary other sales or dispositions than (i) the sale of assets pursuant to Reinsurance Agreements entered into in each case the ordinary course of business, (ii) the sale or disposition of machinery and equipment no longer used or useful in the conduct of such Person's business, (iii) the sale of assets to the extent Borrower or any Subsidiary of the Required Lenders have consented in writing thereto and subject Borrower, provided that after giving effect to such conditions sale or other disposition, no Default or Event of Default would exist hereunder, and (iv) as may be set forth in such consentpermitted by Section 8.11;
(hd) except as otherwise permitted by Section 8.04(b), acquire all or any Subsidiary may be liquidated into portion of the Borrower capital stock or securities of any other Person or purchase, lease or otherwise acquire (in a single transaction or a Subsidiary Guarantor; and
(iseries of related transactions) acquisitions and dispositions all or any substantial part of Permitted Acquisitions, Permitted Investments and Permitted Joint Ventures in accordance with Section 8.06(g)the Property of any other Person.
Appears in 1 contract
Samples: Credit Agreement (Amcomp Inc /Fl)
Consolidation, Merger, Sale or Purchase of Assets, etc. The ------------------------------------------------------- Borrower Company will not, and will not permit any Subsidiary of its Subsidiaries to, wind up, liquidate or dissolve its affairs, or enter into any transaction of merger or consolidation, sell or otherwise dispose of all, substantially 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 enter into any partnerships, 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 or other acquisitions of inventory, leases, materials and equipment inventory in the ordinary course of business) or agree to do any of the foregoing at any future time, except that the following shall be permitted:
(a) 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 no Default or such Subsidiary Guarantor is the surviving corporation)Event of Default then exists or would result therefrom, or all or any part of its business, properties and assets Capital Expenditures may be conveyed, leased, sold or transferred to made by the Borrower or any Subsidiary Guarantor (or any other Subsidiary), provided that neither Company and its Subsidiaries in 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 Subsidiaryordinary course of their respective businesses;
(b) capital expenditures advances, investments and loans (including Joint Venture Investments in Permitted Joint Ventures) may be made to the extent within the limitations set forth in permitted pursuant to Section 8.05 hereof8.05;
(c) Dividends may be paid to the investments, acquisitions and transfers or dispositions of properties extent permitted pursuant to by Section 8.06;
(d) each of the Borrower Company and the Subsidiary Guarantors 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 a Capitalized Lease Obligation not Obligations except as otherwise permitted by Section 8.04(d)8.03(b);
(e) licenses or sublicenses by each of the Borrower Company and its Subsidiary Guarantors of softwareSubsidiaries may, customer lists, trademarks and other intellectual property in the ordinary course of businessbusiness and consistent with past practices, providedsell, lease (as lessor) or otherwise dispose of any of its equipment to the extent that such licenses or sublicenses shall not interfere with the business of the Borrower or any Subsidiary Guarantor;
(f) other sales or dispositions of assets in the ordinary course of business, provided that (w) the aggregate Net Cash Proceeds received from -------- all such sales and dispositions shall not exceed $1,500,000 in any fiscal year of the Borrower, (x) each any such sale sale, lease or disposition shall be in an amount at least equal to the fair market value thereof (as determined in good faith by the Board of Directors senior management of the Borrower in 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 case transferee or issuer, provided that the sum of sales in excess of $500,000) and for proceeds consisting solely of not less than (A) 80% cash 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) seller indebtedness evidenced 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 which 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 effect to such Permitted Line of Business Sale), (v) the Company shall have given the Administrative Agent and 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 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 pledged 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 Permitted Line of Business Sale had been consummated on the date occurring twelve months prior to the last day of the most recently 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, (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 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 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 Line of Business Sale and (viii) the Company shall have delivered to the Collateral 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 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 Borrower Pledge Agreementaggregate 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 Net Cash Proceeds 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 sale are applied to repay 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 Loans 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 required permitted by Section 4.02(A)(c8.03(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 provided -------- furtherafter 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 such acquisition engaged in, the businesses permitted pursuant to Section 8.08, (v) to the extent that the sale or disposition such Permitted Acquisition is of the capital stock of another Person such Permitted Acquisition must be of 100% of such capital stock (except for directors qualifying shares) and all of the provisions of Section 8.04 to the extent applicable shall have been complied with in respect of such Permitted Acquisition, (vi) the Company or such Subsidiary is the surviving corporation of any Permitted Acquisition structured as a merger or consolidation, and (vii) with respect to each Permitted Acquisition, (A) the Company shall have given the Administrative Agent and the Banks at least 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 ------- Borrower 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 any Subsidiary Guarantor shall be prohibited 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 (iivii)(C) any Subsidiary of (to the Borrower (other than a Subsidiary Guarantorextent requiring pro forma calculations) shall be prohibited unless it is for all of the outstanding capital stock of such Subsidiary owned by the Borrower;
(g) other sales or dispositions of assets in each case applicable only to the extent that either (x) the Required Lenders have consented sum of (I) the Permitted Acquisition Amount in writing thereto and subject to respect of such conditions Permitted Acquisition plus (II) the aggregate fair market value (determined as may be 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 consent;
Permitted Acquisition plus (hII) 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 Subsidiary may 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 liquidated into consummated (but excluding any Permitted Acquisitions meeting the Borrower or a Subsidiary Guarantorcriteria set forth in clause (x) above), exceeds $30,000,000; and
(ij) acquisitions the Company and dispositions of its Subsidiaries may transfer accounts receivable and related assets pursuant to the Permitted Acquisitions, Permitted Investments and Permitted Joint Ventures in accordance with Section 8.06(g)Receivables Securitization Program.
Appears in 1 contract
Samples: Credit Agreement (Ametek Inc/)
Consolidation, Merger, Sale or Purchase of Assets, etc. The ------------------------------------------------------- Borrower will not, and nor will not the Borrower permit any Subsidiary of its Subsidiaries to, wind up, liquidate or dissolve its affairs, affairs or enter into any transaction of merger merger, amalgamation or consolidation, sell or convey, sell, lease or otherwise dispose of 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 purchaseenter into any sale-leaseback transactions, lease or purchase or otherwise acquire all (in one or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, leasesmaterials, materials general intangibles and equipment in the ordinary course of business) of any Person or agree to do any of the foregoing at any future time, except that the following shall be permitted:
(a) the Borrower and its Subsidiaries may, as lessee, enter into operating leases in the ordinary course of business with respect to real, personal, movable or immovable property;
(b) the Borrower and its Subsidiaries may make purchases, sales and other transfers and transactions pursuant to Sections 5.8 and 5.10 of the Stockholders Agreement, and after the Cendant Amendment Effective Date, the Acquisition Cooperation Agreement and agreements entered into with Cendant or one of its Subsidiaries to effectuate such transactions; provided that Permitted Acquisitions shall be subject to the requirements of Section 8.13;
(c) the Borrower and its Subsidiaries may enter into license and sublicense agreements of software, customer lists, trademarks and other intellectual property with Cendant or one or more of its Subsidiaries and otherwise in the ordinary course of business;
(d) the Borrower and its Subsidiaries may make (i) investments in the Hunneman Mortgage Corporation in connection with the residential mortgage business or (ii) investments in connection with Arbitrage Loans;
(e) Investments permitted pursuant to Section 9.05 and the disposition or liquidation of Cash Equivalents in the ordinary course of business;
(f) replacement assets or retained to the extent permitted by Section 4.02(b) and/or the other relevant provisions of this Agreement;
(g) the Borrower or any Subsidiary of the Borrower may be merged convey, lease, license, sell 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 otherwise transfer all or any part of its business, properties and assets may be conveyed, leased, sold or transferred to the Borrower or any other Guarantor, so long as 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;
(h) any Subsidiary Guarantor (of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower or any other Subsidiary)Guarantor, provided that neither so long as (i) the Borrower nor or such Guarantor is the surviving corporation of any such merger, 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 assets of such Subsidiary Guarantor shall remain 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) any Foreign Subsidiary may be a party to merged or amalgamated with and into, or be dissolved or liquidated into, or transfer any mergerof its assets to, consolidation or liquidation otherwise permitted by this clause any other Wholly-Owned Foreign Subsidiary of the Borrower, so long as (ai) involving a Subsidiary that is not a Wholly-Owned SubsidiaryForeign Subsidiary of the Borrower 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 assets of such 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, amalgamation, dissolution, liquidation or transfer) and all actions required to maintain said perfected status have been taken;
(bj) capital expenditures 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 does not exceed the sum of (i) $5,000,000 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 extent within the limitations set forth in Section 8.05 hereof;
(c) the investmentsBorrower and any Guarantor, acquisitions and transfers or dispositions of properties permitted pursuant to Section 8.06;
(d) each of the Borrower and the Subsidiary Guarantors may lease (as lessee) real or personal property 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(d)9.02(g);
(ek) licenses or sublicenses by the Borrower and its Subsidiary Guarantors of softwareSubsidiaries may lease, customer listsas lessor, trademarks and other intellectual property or sublease, as sublessor, equipment, machinery or Real Property in the ordinary course of business, provided, that so long as such licenses or sublicenses shall not interfere with the business of the Borrower or any Subsidiary Guarantor;
lease is for fair consideration (f) other sales or dispositions of assets determined in the ordinary course of business, provided that (w) the aggregate Net Cash Proceeds received from -------- all such sales and dispositions shall not exceed $1,500,000 in any fiscal year of the Borrower, (x) each such sale shall be in an amount at least equal to the fair market value thereof (as determined good faith by the Board of Directors or senior management of the Borrower in the case of sales in excess of $500,000Borrower);
(l) and for proceeds consisting solely of not less than (A) 80% cash and (B) seller indebtedness evidenced by promissory notes which notes shall be pledged and delivered to the Collateral Agent pursuant to the Borrower Pledge Agreement, and (y) the Net Cash Proceeds any 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 its Subsidiaries may sell or disposition otherwise dispose of the capital stock of, or other equity interests in, any of (i) their respective Subsidiaries, Unrestricted Subsidiaries and Joint Ventures which, in the ------- Borrower or any Subsidiary Guarantor shall be prohibited and (ii) any Subsidiary of the Borrower (other than a Subsidiary Guarantor) shall be prohibited unless it is for all of the outstanding capital stock reasonable opinion of such Subsidiary owned by Person, are uneconomic or no longer useful in the Borrower;
(g) other sales or dispositions conduct of assets in each case to the extent the Required Lenders have consented in writing thereto and subject to such conditions as may be set forth in such consent;
(h) any Subsidiary may be liquidated into the Borrower or a Subsidiary Guarantor; and
(i) acquisitions and dispositions of Permitted AcquisitionsPerson's business, Permitted Investments and Permitted Joint Ventures in accordance with Section 8.06(g).provided that --------
Appears in 1 contract
Samples: Credit Agreement (NRT Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. The No Borrower ------------------------------------------------------- will, nor will any Borrower will not, and will not permit any Subsidiary of its Subsidiaries to, wind up, liquidate or dissolve its affairs, affairs or enter into any transaction of merger or consolidation, sell 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 of inventory and obsolete or obsolete equipment or excess equipment no longer needed worn-out equipment, in the conduct of the business each case in the ordinary course of business) ), or purchaseenter into any partnerships, lease joint ventures or sale-leaseback transactions, or purchase or otherwise acquire all (in one 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 of any of the foregoing at any future timePerson, except that the following shall be permitted:
(a) 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 Consolidated Capital Expenditures by Workflow and its business, properties and assets may be conveyed, leased, sold or transferred Subsidiaries to the Borrower extent not in violation of Section 8.05, and Workflow and its Subsidiaries may enter into operating leases as lessee with respect to real or any Subsidiary Guarantor (or any other Subsidiary), provided that neither personal property in the Borrower nor any Subsidiary Guarantor may be a party to any merger, consolidation or liquidation ordinary course of business and otherwise permitted by in compliance with this clause (a) involving a Subsidiary that is not a Wholly-Owned SubsidiaryAgreement;
(bi) capital expenditures Workflow and the U.S. Subsidiary Guarantors (other than Specified Subsidiaries and any U.S. Subsidiary Guarantors that are not required to execute and deliver, and have not executed and delivered, the respective Security Documents) may transfer assets among themselves, (ii) DBF and the other Canadian Credit Parties (other than Specified Subsidiaries and any Canadian Credit Parties that are not required to execute and deliver, and have not executed and delivered, the respective Security Documents) may transfer assets among themselves and to Workflow and the U.S. Subsidiary Guarantors (other than Specified Subsidiaries and any U.S. Subsidiary Guarantors that are not required to execute and deliver, and have not executed and delivered, the respective Security Documents), (iii) the Credit Parties may make intercompany loans to the extent within the limitations set forth in permitted by Section 8.05 hereof8.04(d);
(c) the investments, acquisitions and transfers or dispositions of properties Investments permitted pursuant to Section 8.06;
(d) each of the Borrower and the Subsidiary Guarantors may lease (as lessee) real or personal property 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(d));
(e) licenses or sublicenses by the Borrower Workflow and its Subsidiary Guarantors of softwareSubsidiaries may sell or discount, customer listsin each case without recourse, trademarks and other intellectual property accounts receivables arising in the ordinary course of business, providedbut only in connection with the compromise or collection thereof and not as part of any financing transaction;
(e) Workflow and its Subsidiaries may sell or otherwise dispose of assets (including pursuant to a sale-leaseback transaction) for cash and at fair market value (as determined in good faith by Workflow or such Subsidiary), provided that the aggregate cash proceeds from all such licenses or sublicenses sales pursuant to this -------- clause (e) shall not interfere with exceed, in the business aggregate, $10,000,000 in any two consecutive fiscal year period of the Borrower or any Subsidiary GuarantorWorkflow;
(f) other sales the Credit Parties may acquire all or dispositions of assets in the ordinary course of business, provided that (w) the aggregate Net Cash Proceeds received from -------- substantially all such sales and dispositions shall not exceed $1,500,000 in any fiscal year of the Borrower, assets of any Acquired Business (x) each such sale shall be in an amount at least equal to the fair market value thereof (as determined by the Board of Directors or all or substantially all of the Borrower in the case assets of sales in excess of $500,000) and for proceeds consisting solely of not less than (A) 80% cash and (B) seller indebtedness evidenced by promissory notes which notes shall be pledged and delivered to the Collateral Agent pursuant to the Borrower Pledge Agreement, and (y) the Net Cash Proceeds a product line or division 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 Acquired Business) or disposition 100% of the capital stock of any Acquired Business (including by merger of the Acquired Business with a Credit Party so long as the survivor of such merger is, or becomes at such time, a Credit Party although in the case of any such merger which involves any Borrower, such Borrower shall be the surviving corporation) (any such acquisition, a "Permitted Acquisition" and the date of consummation of any such Permitted Acquisition, an "Acquisition Date"), provided that (i) the ------- Borrower sum of the -------- aggregate cash consideration plus the aggregate fair market value of all other consideration paid by the Credit Parties (including any Indebtedness issued, incurred and/or assumed by the Credit Parties and any capital stock issued by Workflow, but excluding any amounts paid through an earn-out formula based on earnings) in connection with any Permitted Acquisition shall not exceed $35,000,000 (except that the total consideration for each of two Permitted Acquisitions during the term of this Agreement may be up to $50,000,000), provided that the Credit parties may consummate Permitted Acquisitions in which -------- the aggregate consideration is greater than $35,000,000 but less than or any Subsidiary Guarantor equal to $50,000,000 so long as least 90% of such aggregate consideration shall be prohibited and consist of non-redeemable common stock and/or Qualified Preferred Stock of Workflow (although the proviso contained in this clause (i) shall not apply to the two $50,000,000 Permitted Acquisitions referred to above in this clause (i)), (ii) any Subsidiary no Default or Event of Default exists at the Borrower time of such Permitted Acquisition or will exist as a result thereof, (other than a Subsidiary Guarantoriii) shall be prohibited unless it is for all of the outstanding capital stock of such Subsidiary owned by the Borrower;
(g) other sales or dispositions of assets in each case to the extent the Required Lenders have consented in writing thereto representations and subject to such conditions as may be warranties set forth in this Agreement are true and correct in all material respects, both before and after giving effect to any such consent;
Permitted Acquisition, (hiv) in respect of each Permitted Acquisition (or of all Permitted Acquisitions closing on the same date), Workflow shall have delivered to the Agent an officer's certificate executed by an Authorized Financial Officer of Workflow demonstrating (in reasonable detail) that (A) on a pro forma basis determined as --- ----- if such Permitted Acquisition (or Acquisitions) had been consummated on the first day of the last Test Period of Workflow then ended (and assuming that any Subsidiary may be liquidated into Indebtedness incurred, issued or assumed in connection therewith had been incurred, issued or assumed on the Borrower or a Subsidiary Guarantor; and
(i) acquisitions first day of, and dispositions of Permitted Acquisitionshad remained outstanding throughout, Permitted Investments such Test Period), Workflow would have been in compliance with Sections 8.09 and Permitted Joint Ventures in accordance with Section 8.06(g).8.10 for such Test Period
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. The ------------------------------------------------------- Borrower will not, and nor will not the Borrower permit any Subsidiary of its Subsidiaries to, wind up, liquidate or dissolve its affairs, affairs or enter into any transaction of merger merger, amalgamation or consolidation, sell or convey, sell, lease or otherwise dispose of 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 purchaseenter into any sale-leaseback transactions, lease or purchase or otherwise acquire all (in one or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, leasesmaterials, materials general intangibles and equipment in the ordinary course of business) of any Person or agree to do any of the foregoing at any future time, except that the following shall be permitted:
(a) the Borrower and its Subsidiaries may, as lessee, enter into operating leases in the ordinary course of business with respect to real, personal, movable or immovable property;
(b) the Borrower and its Subsidiaries may make purchases, sales and other transfers and transactions pursuant to the Acquisition Cooperation Agreement and agreements entered into with Cendant or one of its Subsidiaries to effectuate such transactions; provided that Permitted Acquisitions shall be subject to the requirements of Section 8.13;
(c) the Borrower and its Subsidiaries may enter into license and sublicense agreements of software, customer lists, trademarks and other intellectual property with Cendant or one or more of its Subsidiaries and otherwise in the ordinary course of business;
(d) the Borrower and its Subsidiaries may make (i) investments in the Hunneman Mortgage Corporation in connection with the residential mortgage business or (ii) investments in connection with Cash Secured Loans;
(e) Investments permitted pursuant to Section 9.05 and the disposition or liquidation of Cash Equivalents in the ordinary course of business;
(g) the Borrower or any Subsidiary of the Borrower may be merged convey, lease, license, sell 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 otherwise transfer all or any part of its business, properties and assets may be conveyed, leased, sold or transferred to the Borrower or any other Guarantor, so long as 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;
(h) any Subsidiary Guarantor (of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower or any other Subsidiary)Guarantor, provided that neither so long as (i) the Borrower nor or such Guarantor is the surviving corporation of any such merger, 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 assets of such Subsidiary Guarantor shall remain 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) any Foreign Subsidiary may be a party to merged or amalgamated with and into, or be dissolved or liquidated into, or transfer any mergerof its assets to, consolidation or liquidation otherwise permitted by this clause any other Wholly-Owned Foreign Subsidiary of the Borrower, so long as (ai) involving a Subsidiary that is not a Wholly-Owned SubsidiaryForeign Subsidiary of the Borrower 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 assets of such 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, amalgamation, dissolution, liquidation or transfer) and all actions required to maintain said perfected status have been taken;
(bj) capital expenditures 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 does not exceed the sum of (i) $5,000,000 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 extent within the limitations set forth in Section 8.05 hereof;
(c) the investmentsBorrower and any Guarantor, acquisitions and transfers or dispositions of properties permitted pursuant to Section 8.06;
(d) each of the Borrower and the Subsidiary Guarantors may lease (as lessee) real or personal property 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(d)9.02(g);
(ek) licenses or sublicenses by the Borrower and its Subsidiary Guarantors of softwareSubsidiaries may lease, customer listsas lessor, trademarks and other intellectual property or sublease, as sublessor, equipment, machinery or Real Property in the ordinary course of business, provided, that so long as such licenses lease is for fair consideration (determined in good faith by the Board of Directors or sublicenses shall not interfere with the business senior management of the Borrower or any Subsidiary GuarantorBorrower);
(fl) the Borrower and any of its Subsidiaries may sell or otherwise dispose of the capital stock of, or other sales or dispositions equity interests in, any of assets their respective Subsidiaries, Unrestricted Subsidiaries and Joint Ventures which, in the ordinary course reasonable opinion of such Person, are uneconomic or no longer useful in the conduct of such Person's business, provided that (wv) -------- in the aggregate Net Cash Proceeds received from -------- all such sales and dispositions shall not exceed $1,500,000 in case of a sale or other disposition of the capital stock or other equity interests of any fiscal year 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, (xw) each such sale or disposition shall be in 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 Board Borrower in good faith, of Directors 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 (l) after the Restatement Effective Date shall not exceed $10,000,000 in the aggregate and (z) the Net Sale Proceeds therefrom are either applied to reduce the Total Revolving Loan Commitment as required by Section 4.02(b) or reinvested in replacement assets or retained to the extent permitted by Section 4.02(b) and/or the other relevant provisions of this Agreement;
(m) the Borrower 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 the Borrower 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 sales in excess of $500,000) and for proceeds consisting solely of not less than (A) 80% cash and (B) seller indebtedness evidenced by promissory notes which notes each such agreement, such agreement shall be pledged and delivered expressly conditioned upon obtaining the requisite consent of the Required Banks under this Agreement or the repayment of all Obligations hereunder as a condition precedent to the Collateral Agent pursuant 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 the Borrower Pledge Agreement, and its Subsidiaries under any such agreement shall not exceed $1,000,000; and
(yn) 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 disposition of the capital stock of (i) the ------- Borrower or any Subsidiary Guarantor shall be prohibited and (ii) any Subsidiary of its Subsidiaries may effect Permitted Sale- Leaseback Transactions in accordance with the definition thereof; provided -------- that the aggregate amount of all proceeds received by the Borrower (other than a Subsidiary Guarantor) and its Subsidiaries from all Permitted Sale-Leaseback Transactions consummated on and after the Restatement Effective Date shall be prohibited unless it is for all of the outstanding capital stock of such Subsidiary owned by the Borrower;
(g) other sales or dispositions of assets in each case to not exceed $10,000,000. To the extent the Required Lenders have consented in writing thereto and subject Banks 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 as permitted by this Section 9.02, such conditions as may be set forth in such consent;
Collateral (h) any Subsidiary may be liquidated into unless transferred to the Borrower or a Subsidiary Guarantor; and
thereof) shall (iexcept as otherwise provided above) acquisitions be sold or otherwise disposed of free and dispositions clear of Permitted Acquisitionsthe Liens created by the Security Documents and the Administrative Agent shall take such actions (including, Permitted Investments and Permitted Joint Ventures without limitation, directing the Collateral Agent to take such actions) as are appropriate in accordance with Section 8.06(g)connection therewith.
Appears in 1 contract
Samples: Credit Agreement (NRT Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. The ------------------------------------------------------- Borrower Holdings will not, and will not permit any Subsidiary to, wind up, liquidate or dissolve its affairs, or enter into any transaction of merger or consolidation, sell or convey, sell, lease or otherwise dispose of all or any part of its property or assets (other than inventory or worn-out or obsolete equipment or excess equipment no longer needed in the conduct of the business business, in each case in the ordinary course of business) or purchase, lease or otherwise acquire all or any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, leases, materials materials, supplies and equipment equipment, in each case in the ordinary course of business) or agree to do any of the foregoing at any future timetime 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) any Subsidiary of the Borrower may be merged or consolidated with or into, or be liquidated into, the Borrower or a Subsidiary Guarantor Qualified Credit Party (so long as a Qualified Credit Party (which must be the Borrower or in the case of any such Subsidiary Guarantor transaction with the Borrower) is the surviving corporation), and (ii) the Borrower or any Subsidiary thereof may, in the ordinary course of business consistent with past practices, convey, sell, lease or otherwise transfer all or any part of its business, properties and assets may be conveyed, leased, sold or transferred to the Borrower or any Subsidiary Guarantor (or any other Subsidiary), provided 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 SubsidiaryQualified Credit Party;
(b) capital expenditures Consolidated Capital Expenditures may be made by the Borrower and its Subsidiaries to the extent within the limitations set forth in Section 8.05 hereof, and Reinvestment Assets may be acquired as specifically permitted by Section 4.02(A)(c) hereof;
(c) the investments, acquisitions and transfers or dispositions of properties permitted pursuant to Section 8.068.06 and Dividends permitted pursuant to Section 8.08;
(d) each of the Borrower and the any Subsidiary Guarantors 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(d8.04(c) and (j));
(e) licenses or sublicenses by the Borrower and its Subsidiary Guarantors Subsidiaries of software, customer lists, trademarks and other 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 Guarantorexcept, in the case of any such license or sublicense by a Foreign Subsidiary, as is not reasonably likely to have Material Adverse Effect;
(f) other sales or dispositions (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 ordinary course time of businesssuch 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), provided that (w) the aggregate Net Cash Proceeds received from -------- all such sales and dispositions shall permitted by this sub-clause (B) do not exceed $1,500,000 30,000,000 in the aggregate, provided that (1) to the extent the Net Cash Proceeds received in connection with any fiscal year of the Borrowersale pursuant to this Section 8.02(f) exceed $1,000,000, (x) each such sale shall be result in the Borrower or the respective Subsidiary receiving consideration in an amount at least equal to the fair market value thereof (as determined by the Board of Directors of the Borrower in the case assets sold, which consideration shall consist of sales in excess of $500,000) and for proceeds consisting solely of not less than (A) 80at 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), (B) seller indebtedness evidenced by promissory notes which notes shall be pledged and delivered to the Collateral Agent pursuant to the Borrower Pledge Agreement, and (y2) the Net Cash Proceeds of any such 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 the capital stock of (i) the ------- Borrower or any Subsidiary Guarantor shall be prohibited and (ii) any Subsidiary Equity Interests of the Borrower (other than a Subsidiary Guarantor) shall be prohibited unless it is for all prohibited, except that 100% of the outstanding capital stock Equity Interests of such Subsidiary owned by the BorrowerBorrower may be transferred to Intermediate Holdco contemporaneously with or after the establishment of same in accordance with the definition thereof;
(g) other sales or dispositions of assets in each case to the extent the Required Lenders have consented in writing thereto and subject to such conditions as may be set forth in such consentAcquisition;
(h) any Subsidiary may be liquidated into 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 a 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 liquidate Cash Equivalents in the ordinary course of business;
(k) Holdings and its Subsidiaries may pre-pay rent under leases and may purchase pre-paid insurance in the ordinary course of business;
(l) the Borrower and any of its Subsidiaries may convey, sell, lease or otherwise transfer assets to any Joint Venture, provided that the fair market value (as determined by the Borrower in good faith) of the 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 conveyance, sale or transfer;
(m) Foreign Subsidiaries may sell assets pursuant to Sale/Leaseback Transactions so long as at no time shall the aggregate amount of the 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 GuarantorDebt Amount as then in effect;
(n) (i) Foreign Subsidiaries may convey, sell, lease or otherwise transfer assets to other Foreign Subsidiaries and (ii) Non-Wholly Owned Domestic Subsidiaries may convey, sell, lease or otherwise transfer assets to other Non-Wholly Owned Domestic Subsidiaries;
(o) Foreign Subsidiaries may sell receivables and 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 (without 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
(ip) acquisitions the Borrower and dispositions its Subsidiaries may sell (without recourse) receivables (and related assets) arising from goods and services provided to Honeywell International Inc. pursuant to factoring arrangements entered into in the ordinary course of business consistent with past practices so long as at no time shall the aggregate amount of Permitted Acquisitions, Permitted Investments and Permitted Joint Ventures in accordance with Section 8.06(g)Honeywell Receivables Transaction Outstandings arising from such factoring arrangements exceed $1,500,000.
Appears in 1 contract
Samples: Credit Agreement (RBS Global Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. The ------------------------------------------------------- Borrower Holdings will not, and nor will not Holdings permit any Subsidiary of its Subsidiaries to, wind up, liquidate or dissolve its affairs, affairs or enter into any transaction of merger merger, amalgamation or consolidation, sell or convey, sell, lease or otherwise dispose of 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 purchaseenter into any sale-leaseback transactions, lease or purchase or otherwise acquire all (in one or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, leasesmaterials, materials general intangibles, equipment, goods and equipment services in the ordinary course of business) of any Person or agree to do any of the foregoing at any future time, except that the following shall be permitted:
(a) the US Borrower and its Subsidiaries may, as lessee, enter into operating leases in the ordinary course of business with respect to real, personal, movable or immovable property;
(b) Capital Expenditures by the US Borrower and its Subsidiaries to the extent not in violation of Section 7.11;
(c) Investments permitted pursuant to Section 7.05 and the disposition or 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, 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 in the conduct of such Person’s business, in each case in the ordinary course of business;
(e) any Subsidiary of the US Borrower may be merged convey, lease, license, sell 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 otherwise transfer all or any part of its business, properties and assets to the US Borrower or to any Subsidiary Guarantor that is a Wholly-Owned Domestic Subsidiary, so long as 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 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;
(f) any Foreign Subsidiary of the US Borrower may be conveyedconvey, leasedlease, sold 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 (or any other Subsidiary), provided 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 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) any security interests granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the applicable Security Documents in the assets and capital stock of such Subsidiary shall remain 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;
(bh) capital expenditures any 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 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 (i)(A) in the case of any such 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 the surviving corporation of any such merger, dissolution or liquidation and (iv) any security interests granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the applicable Security Documents in the assets and capital stock of such Foreign Subsidiary shall remain in full force and effect and perfected (to at least the same extent within the limitations set forth as in Section 8.05 hereofeffect immediately prior to such merger, dissolution or liquidation) and all actions required to maintain said perfected status have been taken;
(ci) the investments, acquisitions and transfers or dispositions of properties permitted pursuant to Section 8.06;
(d) each of the US Borrower and the Subsidiary Guarantors may lease (as lessee) real or personal property in the ordinary course of business (its Wholly-Owned Subsidiaries shall be permitted to make Permitted Acquisitions, so long as such lease does not create a Capitalized Lease Obligation not otherwise permitted by Permitted Acquisitions are effected in accordance with the requirements of Section 8.04(d))6.13;
(ej) licenses or sublicenses by the US Borrower and its Subsidiary Guarantors of softwareSubsidiaries may, customer lists, trademarks and other intellectual property in the ordinary course of business, providedlicense, that as licensor or licensee, patents, trademarks, copyrights and know-how to or from third Persons or one another, so long as any such licenses or sublicenses shall not interfere with license by the business of the US Borrower or any such Subsidiary Guarantorin 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;
(fk) the US Borrower and its Domestic Subsidiaries may transfer assets (other sales than cash) to Wholly-Owned Foreign Subsidiaries, so long as (i) no Default or dispositions Event of Default exists at the time of the 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 ordinary course US Borrower and any of businessits Subsidiaries may sell or otherwise dispose of the capital stock of, or other equity interests in, any of their respective Subsidiaries (other than the Canadian Borrower or the UK Borrower, the equity interests of which may not be sold or otherwise disposed of pursuant to this subsection (l)), Joint Ventures and Unrestricted Subsidiaries; provided that (wi) in the aggregate Net Cash Proceeds received from -------- all such sales and dispositions shall not exceed $1,500,000 in any fiscal year case of a sale or other disposition of the capital stock or other equity interests of any Wholly-Owned Subsidiary of the US Borrower, 100% of the capital stock or other equity interests of such Subsidiary shall be so sold or disposed of, (xii) each such sale or disposition shall be in for an amount at least equal to the 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 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 and (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;
(m) the US Borrower and any of its Subsidiaries may enter into agreements to (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 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 operations of 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 Board 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 Directors 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 sales 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 $500,00035,000,000; 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 proceeds consisting solely an amount at least equal to the fair market value thereof (as determined in good faith by senior management of not less 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) 80% cash 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) seller indebtedness evidenced by promissory notes which notes shall be pledged and delivered to the Collateral Agent pursuant to the Borrower Pledge Agreement, and (y) 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 disposition 100% of the capital stock of (i) the ------- Borrower or any Subsidiary Guarantor shall be prohibited and (ii) 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 (other than and, if the Person that sold such assets was (1) a US Credit Party, such Wholly-Owned Subsidiary Guarantorshall become a US Credit Party or (2) a Foreign Credit Party, such Wholly-Owned Subsidiary shall be prohibited unless it is for all of the outstanding capital stock of such Subsidiary owned by the Borrower;become a Foreign Credit Party); and
(gq) other sales or dispositions of assets in each case to the White Salt Sale. To the extent the Required Lenders have consented in writing thereto and subject 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 conditions as may be set forth in such consent;
Collateral (h) any Subsidiary may be liquidated into unless transferred to the US Borrower or a Subsidiary Guarantor; and
thereof) shall (iexcept as otherwise provided above) acquisitions be sold or otherwise disposed of free and dispositions clear of Permitted Acquisitions, Permitted Investments the Liens created by the Security Documents and Permitted Joint Ventures the Administrative Agent shall take such actions (including directing the Collateral Agent to take such actions) as are appropriate in accordance with Section 8.06(g)connection therewith.
Appears in 1 contract
Samples: Credit Agreement (Compass Minerals International Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. The ------------------------------------------------------- Borrower Holdings will not, and nor will not Holdings permit any Subsidiary of its Subsidiaries to, wind up, liquidate or dissolve its affairs, affairs or enter into any transaction of merger merger, amalgamation or consolidation, sell or convey, sell, lease or otherwise dispose of 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 purchaseenter into any sale-leaseback transactions, lease or purchase or otherwise acquire all (in one or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, leasesmaterials, materials general intangibles, equipment, goods and equipment services in the ordinary course of business) of any Person or agree to do any of the foregoing at any future time, except that the following shall be permitted:
(a) 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 assets may be conveyed, leased, sold or transferred to the Borrower or any Subsidiary Guarantor (or any other Subsidiary), provided 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;
(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 US Borrower and the Subsidiary Guarantors may lease (its Subsidiaries may, as lessee) real or personal property , enter into operating leases 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(d))with respect to real, personal, movable or immovable property;
(eb) licenses or sublicenses Capital Expenditures by the US Borrower and its Subsidiary Guarantors Subsidiaries to the extent not in violation of software, customer lists, trademarks Section 7.11;
(c) Investments permitted pursuant to Section 7.05 and other intellectual property the disposition or liquidation of Cash Equivalents in the ordinary course of business, provided, that such licenses or sublicenses shall not interfere with the business of the Borrower or any Subsidiary Guarantor;
(fd) other sales the US Borrower and any of its Subsidiaries may sell or dispositions otherwise dispose of assets (excluding capital stock of, or other equity interests in, Subsidiaries, Joint Ventures and Unrestricted Subsidiaries) that, in the ordinary course reasonable opinion of such Person, are obsolete, uneconomic or no longer useful or desirable in the conduct of such Person's business; PROVIDED that, provided that except with respect to asset dispositions or transfers arising out of, or in connection with, the events described in clauses (wa) the aggregate Net Cash Proceeds received from -------- all such sales and dispositions shall not exceed $1,500,000 in any fiscal year (b) of the Borrowerdefinition of Recovery Event, (xi) each such sale or disposition shall be in 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 Board extent any such sale or disposition (or any series of Directors 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 case form of sales in excess of $500,000) and for proceeds consisting solely of not less than (A) 80% cash 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) seller indebtedness evidenced by promissory notes which notes shall be pledged and delivered to the Collateral Agent pursuant to the Borrower Pledge Agreement, and (y) 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 disposition 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 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) any Subsidiary of the US Borrower may convey, lease, license, sell or otherwise transfer all or any part of its business, properties and assets to the US Borrower or to any Subsidiary Guarantor that is a Wholly-Owned Domestic Subsidiary, so long as 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 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;
(f) any 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 shall be prohibited 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) any Subsidiary security interests granted to the Collateral Agent for the benefit of the Borrower (other than a Subsidiary Guarantor) shall be prohibited unless it is for all of Secured Parties pursuant to the outstanding applicable Security Documents in the assets and capital stock of such Subsidiary owned by shall remain in full force and effect and perfected (to at least the Borrower;
(g) other sales or dispositions of assets same extent as in each case to the extent the Required Lenders have consented in writing thereto and subject effect immediately prior to such conditions as may be set forth in such consentmerger, dissolution or liquidation) and all actions required to maintain said perfected status have been taken;
(h) any 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 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 (i)(A) in the case of any such 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 the surviving corporation of any such merger, dissolution or liquidation, and (iv) any security interests granted to the Collateral Agent for the benefit of the Secured Parties pursuant to the applicable Security Documents in the assets and capital stock of 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 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 exists at the time of the 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 capital stock of, or other equity interests in, any of their respective Subsidiaries (other than the Canadian Borrower or the UK Borrower, the equity interests of which may not be sold or otherwise disposed of pursuant to this subsection (m)), Joint Ventures and Unrestricted Subsidiaries; provided that (i) in the case of a sale or other disposition of the capital stock or other equity interests of any Wholly-Owned Subsidiary of the US 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 Holdings), (iii) 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 Holdings in good faith, of any other consideration) shall be in the form of cash, (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);
(n) the US Borrower and any of its Subsidiaries may enter into agreements to (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 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 operations of 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;
(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 Guarantor; and
thereof) shall (iexcept as otherwise provided above) acquisitions be sold or otherwise disposed of free and dispositions clear of Permitted Acquisitionsthe Liens created by the Security Documents and the Administrative Agent shall take such actions (including, Permitted Investments and Permitted Joint Ventures without limitation, directing the Collateral Agent to take such actions) as are appropriate in accordance with Section 8.06(g)connection therewith.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. The ------------------------------------------------------- No Borrower will, nor will not, and will not any Borrower permit any Subsidiary of its Subsidiaries to, wind up, liquidate or dissolve its affairs, affairs or enter into any transaction of merger or consolidation, sell 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 of inventory and obsolete or obsolete equipment or excess equipment no longer needed worn-out equipment, in the conduct of the business each case in the ordinary course of business) ), or purchaseenter into any partnerships, lease joint ventures or sale-leaseback transactions, or purchase or otherwise acquire all (in one 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 of any of the foregoing at any future timePerson, except that the following shall be permitted:
(a) 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 Consolidated Capital Expenditures by Workflow and its business, properties and assets may be conveyed, leased, sold or transferred Subsidiaries to the Borrower extent not in violation of Section 8.05, and Workflow and its Subsidiaries may enter into operating leases as lessee with respect to real or any Subsidiary Guarantor (or any other Subsidiary), provided that neither personal property in the Borrower nor any Subsidiary Guarantor may be a party to any merger, consolidation or liquidation ordinary course of business and otherwise permitted by in compliance with this clause (a) involving a Subsidiary that is not a Wholly-Owned SubsidiaryAgreement;
(bi) capital expenditures Workflow and the U.S. Subsidiary Guarantors (other than Specified Subsidiaries and any U.S. Subsidiary Guarantors that are not required to execute and deliver, and have not executed and delivered, the extent within respective Security Documents) may transfer assets among themselves and (ii) DBF and the limitations set forth in Section 8.05 hereofother Canadian Credit Parties (other than Specified Subsidiaries and any Canadian Credit Parties that are not required to execute and deliver, and have not executed and delivered, the respective Security Documents) may transfer assets among themselves and to Workflow and the U.S. Subsidiary Guarantors (other than Specified Subsidiaries and any U.S. Subsidiary Guarantors that are not required to execute and deliver, and have not executed and delivered, the respective Security Documents);
(c) the investments, acquisitions and transfers or dispositions of properties Investments permitted pursuant to Section 8.06;
(d) each of the Borrower and the Subsidiary Guarantors may lease (as lessee) real or personal property 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(d));
(e) licenses or sublicenses by the Borrower Workflow and its Subsidiary Guarantors of softwareSubsidiaries may sell or discount, customer listsin each case without recourse, trademarks and other intellectual property accounts receivables arising in the ordinary course of business, providedbut only in connection with the compromise or collection thereof and not as part of any financing transaction;
(e) Workflow and its Subsidiaries may sell or otherwise dispose of assets for cash and at fair market value (as determined in good faith by Workflow or such Subsidiary), provided that the aggregate cash proceeds from all such licenses or sublicenses sales pursuant to this clause (e) shall not interfere with exceed, in the business aggregate, $10,000,000 in any two consecutive fiscal year period of the Borrower or any Subsidiary GuarantorWorkflow;
(f) other sales the Credit Parties may acquire all or dispositions of assets in the ordinary course of business, provided that (w) the aggregate Net Cash Proceeds received from -------- substantially all such sales and dispositions shall not exceed $1,500,000 in any fiscal year of the Borrower, assets of any Acquired Business (x) each such sale shall be in an amount at least equal to the fair market value thereof (as determined by the Board of Directors or all or substantially all of the Borrower in the case assets of sales in excess of $500,000) and for proceeds consisting solely of not less than (A) 80% cash and (B) seller indebtedness evidenced by promissory notes which notes shall be pledged and delivered to the Collateral Agent pursuant to the Borrower Pledge Agreement, and (y) the Net Cash Proceeds a product line or division 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 Acquired Business) or disposition 100% of the capital stock of any Acquired Business (including by merger of the Acquired Business with a Credit Party so long as the survivor of such merger is, or becomes at such time, a Credit Party although in the case of any such merger which involves any Borrower, such Borrower shall be the surviving corporation) (any such acquisition, a "Permitted Acquisition" and the date of consummation of any such Permitted Acquisition, an "Acquisition Date"), provided that (i) the ------- Borrower sum of the aggregate cash consideration plus the aggregate fair market value of all other consideration paid by the Credit Parties (including any Indebtedness issued, incurred and/or assumed by the Credit Parties and any capital stock issued by Workflow, but excluding any amounts paid through an earn-out formula based on earnings) in connection with any Permitted Acquisition shall not exceed $35,000,000 (except that the total consideration for each of two Permitted Acquisitions during the term of this Agreement may be up to $50,000,000), provided that the Credit parties may consummate Permitted Acquisitions in which the aggregate consideration is greater than $35,000,000 but less than or any Subsidiary Guarantor equal to $50,000,000 so long as least 90% of such aggregate consideration shall be prohibited and consist of non-redeemable common stock and/or Qualified Preferred Stock of Workflow (although the proviso contained in this clause (i) shall not apply to the two $50,000,000 Permitted Acquisitions referred to above in this clause (i)), (ii) any Subsidiary no Default or Event of Default exists at the Borrower time of such Permitted Acquisition or will exist as a result thereof, (other than a Subsidiary Guarantoriii) shall be prohibited unless it is for all of the outstanding capital stock of such Subsidiary owned by the Borrower;
(g) other sales or dispositions of assets in each case to the extent the Required Lenders have consented in writing thereto representations and subject to such conditions as may be warranties set forth in this Agreement are true and correct in all material respects, both before and after giving effect to any such consentPermitted Acquisition, (iv) in respect of each Permitted Acquisition (or of all Permitted Acquisitions closing on the same date), Workflow shall have delivered to the Agent an officer's certificate executed by an Authorized Financial Officer of Workflow demonstrating (in reasonable detail) that on a pro forma basis determined as if such Permitted Acquisition (or Acquisitions) had been consummated on the first day of the last Test Period of Workflow then ended (and assuming that any Indebtedness incurred, issued or assumed in connection therewith had been incurred, issued or assumed on the first day of, and had remained outstanding throughout, such Test Period), Workflow would have been in compliance with Sections 8.09 and 8.10 for such Test Period, (v) each such Acquired Business shall be in a line of business permitted under Section 8.01, (vi) each such Acquired Business shall be domiciled in the United States (including Puerto Rico) or Canada and shall derive at least 51% of its revenues from its operations in the United States (including Puerto Rico) and/or Canada, and (vii) immediately after giving effect to any such Permitted Acquisition, the Unutilized Total Commitment shall be equal to at least $5,000,000;
(h) any Subsidiary may be liquidated into the Borrower or a Subsidiary Guarantor; and
(i) acquisitions and dispositions of Permitted Acquisitions, Permitted Investments and Permitted Joint Ventures in accordance with Section 8.06(g).
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. The ------------------------------------------------------- Borrower Holdings will not, and will not permit any Subsidiary of its Subsidiaries to, wind up, liquidate or dissolve its affairs, affairs or enter into any transaction of merger or consolidation, sell 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 obsolete equipment or excess equipment no longer needed in the conduct of the business in the ordinary course of business) ), or purchaseenter into any partnerships, lease joint ventures or sale-leaseback transactions, or purchase or otherwise acquire all (in one 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 of any of the foregoing at any future timePerson, except that the following shall be permitted:
(a) 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 assets may be conveyed, leased, sold or transferred to the Borrower or any Subsidiary Guarantor (or any other Subsidiary), provided 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;
(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 Borrower and the Subsidiary Guarantors its Subsidiaries may lease (as lessee) lessee real or personal property in the ordinary course of business business, it being understood that in any event (so long as such i) the Borrower and its Domestic Subsidiaries may lease does not create a Capitalized Lease Obligation not otherwise permitted by Section 8.04(d))real or personal property 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;
(eb) licenses or sublicenses Capital Expenditures by the Borrower and its Subsidiary Guarantors Subsidiaries to the extent not in violation of software, customer lists, trademarks and other 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 GuarantorSection 8.08;
(fc) other sales or dispositions of assets in the ordinary course of businessadvances, investments and loans permitted pursuant to Section 8.05;
(d) Holdings and its Subsidiaries may sell assets, provided that (wx) the aggregate Net Cash Proceeds received sale proceeds from -------- all assets subject to such sales and dispositions shall not exceed $1,500,000 50,000,000 in any fiscal year of the Borrower, (xy) each such asset sale shall be in an amount is for at least equal to the 85% cash and at fair market value thereof (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 Board amount of Directors of the Borrower in the case of sales in excess of $500,000) and for proceeds consisting solely of not less than (A) 80% cash and (B) seller indebtedness evidenced by promissory notes which notes shall be pledged and delivered to the Collateral Agent pursuant to the Borrower Pledge Agreement, and (y) the Net Cash Proceeds of any such sale therefrom or the Net Cash Proceeds are applied to repay the Loans reinvested in replacement assets to the extent required permitted by Section 4.02(A)(c3.03(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 -------- further, 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 receivables arising in the ordinary course of business, but only in connection with the compromise or collection thereof,
(h) the Borrower and its Subsidiaries may sell or exchange specific items of equipment, so long as the purpose of each such sale or disposition exchange is to acquire (and results within 90 days of such sale or exchange in the acquisition of) replacement items of equipment which are the functional equivalent of the item of equipment so sold or exchanged;
(i) the Borrower and its Subsidiaries may, in the ordinary course of business, license patents, trademarks, copyrights and know-how to third Persons and to one another, so long as each such license is permitted to be assigned pursuant to the Security Agreement 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 Subsidiaries may (i) sell their shares of the capital stock of (i) the ------- Borrower YMC Corp. or any Subsidiary Guarantor shall be prohibited and (ii) any 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 (other than a with such Wholly-Owned Subsidiary Guarantor) shall be prohibited unless it is for being the surviving corporation of such merger), and in any case all of the outstanding 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 such Subsidiary owned by all first-tier Foreign Subsidiaries are pledged pursuant to the BorrowerPledge Agreement;
(gn) other sales the assets comprising the non-United States operations of the Borrower or dispositions 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 each 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 Wholly-Owned Domestic Subsidiary of Holdings so long as 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);
(u) any 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 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);
(v) any Domestic Subsidiary of the Borrower may merge with and into, or be dissolved or liquidated into, any Wholly-Owned Domestic Subsidiary of the Borrower so long as (i) such Wholly-Owned Domestic Subsidiary 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 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);
(w) 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 the value of the assets so transferred, when added to the sum of (i) 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 not exceed $50,000,000. To the extent the Required Lenders have consented 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 (and such Collateral is released (or permitted to be released) from the Liens created by the respective Security Document), such Collateral in writing thereto each case shall be sold or otherwise disposed of free and subject 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 conditions actions) as may be set forth are appropriate in such consent;
(h) any Subsidiary may be liquidated into the Borrower or a Subsidiary Guarantor; and
(i) acquisitions and dispositions of Permitted Acquisitions, Permitted Investments and Permitted Joint Ventures in accordance with Section 8.06(g)connection therewith.
Appears in 1 contract
Samples: Credit Agreement (Waters Corp /De/)
Consolidation, Merger, Sale or Purchase of Assets, etc. The ------------------------------------------------------- Borrower will not, and nor will not the Borrower permit any Subsidiary of its Subsidiaries to, wind up, liquidate or dissolve its affairs, affairs or enter into any transaction of merger or consolidation, sell 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 of inventory and obsolete or obsolete equipment or excess equipment no longer needed worn-out equipment, in the conduct of the business each case in the ordinary course of business) ), or purchaseenter into any partnerships, lease joint ventures or sale-leaseback transactions, or purchase or otherwise acquire all (in one 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 of any of the foregoing at any future timePerson, except that the following shall be permitted:
(a) 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 Consolidated Capital Expenditures by Workflow and its business, properties and assets may be conveyed, leased, sold or transferred Subsidiaries to the Borrower extent not in violation of Section 8.05, and Workflow and its Subsidiaries may enter into operating leases as lessee with respect to real or any Subsidiary Guarantor (or any other Subsidiary), provided that neither personal property in the Borrower nor any Subsidiary Guarantor may be a party to any merger, consolidation or liquidation ordinary course of business and otherwise permitted by in compliance with this clause (a) involving a Subsidiary that is not a Wholly-Owned SubsidiaryAgreement;
(bi) capital expenditures Workflow and the U.S. Subsidiary Guarantors may transfer assets among themselves, (ii) DBF and the other Canadian Credit Parties may transfer assets among themselves and to Workflow and the U.S. Subsidiary Guarantors, and (iii) the Credit Parties may make intercompany loans to the extent within the limitations set forth in permitted by Section 8.05 hereof8.04(d);
(c) the investments, acquisitions and transfers or dispositions of properties Investments permitted pursuant to Section 8.06;
(d) each of the Borrower and the Subsidiary Guarantors may lease (as lessee) real or personal property 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(d))Intentionally Omitted;
(e) licenses or sublicenses by the Borrower Workflow and its Subsidiary Guarantors Subsidiaries may sell or otherwise dispose of software, customer lists, trademarks the Specified Subsidiaries and other intellectual property assets (including pursuant to a sale-leaseback transaction) for cash and at fair market value (as determined in good faith by Workflow or such Subsidiary); provided that the ordinary course of business, provided, that Net Cash Proceeds from all such licenses or sublicenses Asset Sales shall not interfere with prepay the business of the Borrower or any Subsidiary GuarantorObligations as provided in Section 3.03 hereof;
(f) other sales Intentionally Omitted;
(g) (x) any Domestic Subsidiary of Workflow may be merged with or dispositions of assets in the ordinary course of businessinto, or be dissolved or liquidated, into Workflow or any U.S. Subsidiary Guarantor, provided that (wi) the aggregate Net Cash Proceeds received from -------- all resulting entity must be a U.S. Subsidiary Guarantor unless such sales merger, dissolution or liquidation involves Workflow, in which case Workflow must be the resulting entity, and dispositions shall not exceed $1,500,000 (ii) a Specified Subsidiary that is a Domestic Subsidiary may be merged with or into, or be dissolved or liquidated into, a U.S. Subsidiary Guarantor so long as the Indebtedness (if any) of, and/or Liens (if any) on the property of, such Specified Subsidiary would be permitted to be incurred by such Subsidiary Guarantor under the provisions hereof at the time of such merger, dissolution or liquidation and (y) any Foreign Subsidiary may be merged with or into, or be dissolved or liquidated into, DBF or any other Canadian Credit Party, provided that (i) the resulting entity must be a Canadian Credit Party and in the event that any fiscal year of such merger, dissolution or liquidation involves DBF, DBF must be the Borrowerresulting entity, (ii) a Specified Subsidiary that is a Foreign Subsidiary may be merged with or into, or be dissolved or liquidated into, a Canadian Credit Party so long as (x) each such sale shall be in an amount at least equal to the fair market value thereof Indebtedness (as determined by the Board of Directors of the Borrower in the case of sales in excess of $500,000if any) of, and/or Liens (if any) and for proceeds consisting solely the property of, such Specified Subsidiary would be permitted to be incurred by such Canadian Credit Party under the provisions hereof at the time of not less than (A) 80% cash and (B) seller indebtedness evidenced by promissory notes which notes shall be pledged and delivered to the Collateral Agent pursuant to the Borrower Pledge Agreementsuch merger, dissolution or liquidation and (y) the Net Cash Proceeds resulting entity must be a Canadian Credit Party and in the event that any such merger, dissolution or liquidation involves DBF, DBF must be the resulting entity, and (iii) if any stock of any Foreign Subsidiary involved in such sale are applied merger, dissolution or liquidation was pledged under the U.S. Pledge Agreement prior to repay the Loans to the extent required by Section 4.02(A)(c)such merger, and provided -------- furtherdissolution or liquidation, that the sale or disposition 100% of the total combined voting power of all classes of capital stock of (i) the ------- Borrower or any Subsidiary Guarantor shall be prohibited surviving Foreign Subsidiary, and (ii) any Subsidiary 100% of the Borrower (all other than a Subsidiary Guarantor) shall be prohibited unless it is for all classes of the outstanding capital stock of such surviving Foreign Subsidiary owned by the Borrower;
(g) other sales or dispositions of assets in each case shall be pledged pursuant to the extent the Required Lenders have consented in writing thereto and subject to such conditions as may be set forth in such consent;U.S. Pledge Agreement; and
(h) each of Workflow and its Subsidiaries may grant leases or subleases to other Persons not materially interfering with the conduct of the business of Workflow or any Subsidiary may be liquidated into the Borrower or a Subsidiary Guarantor; and
(i) acquisitions and dispositions of Permitted Acquisitions, Permitted Investments and Permitted Joint Ventures in accordance with Section 8.06(g)its Subsidiaries.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. The ------------------------------------------------------- Borrower Borrowers will not, and will not permit any Subsidiary other Credit Party to, wind up, liquidate or dissolve its affairs, or enter into any transaction of merger or consolidation, or sell or otherwise dispose of 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, lease or otherwise 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, except that the following shall be permitted:
(a) any Subsidiary of the Borrower Guarantor may be merged or consolidated with or into, or be liquidated into, the Borrower or a Subsidiary Guarantor Partnership (so long as the Borrower or such Subsidiary Guarantor Partnership is the surviving corporation)entity) or another Subsidiary Guarantor, or all or any part of its the business, properties and assets of a Subsidiary Guarantor may be conveyed, leased, sold or transferred to the Borrower Partnership or any Subsidiary Guarantor (or any other Subsidiary), provided 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 SubsidiaryGuarantor;
(b) capital expenditures 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 8.05 7.05 hereof;
(cd) the investments, acquisitions and transfers or dispositions of properties permitted pursuant to Section 8.067.06;
(de) each of the Borrower and the Subsidiary Guarantors Partnership may lease (as lessee) real or personal property 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(d7.04(d));
(ef) licenses or sublicenses by the Borrower and its Subsidiary Guarantors Partnership of software, customer lists, trademarks and other intellectual property in the ordinary course of business, provided, provided that such licenses or sublicenses shall not interfere with the business of the Borrower or any Subsidiary GuarantorCredit Parties;
(fg) to the extent it has not done so prior to the Closing Date, the Partnership may transfer its rights under the HHC Option Agreement to SCGC for nominal consideration to the extent otherwise permitted to do so by the terms thereof;
(h) 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 General Partner) minority limited partnership or member interest therein provided that such transferee remains so owned and does not further transfer any of the rights it obtains from the Partnership;
(i) the Partnership may enter into leases as lessor of restaurant and other concessionary space at the Project in accordance with customary commercial practice and on commercially reasonable terms; and
(j) other sales or dispositions of assets in the ordinary course of business, provided that (v) no Event of Default is then in existence, (w) the aggregate Net Cash Proceeds received from -------- fair market value for all properties the subject of such sales and dispositions shall not exceed $1,500,000 1,000,000 in any fiscal year of the BorrowerPartnership, (x) the consideration for each such sale shall be in an amount in cash at least equal to the fair market value thereof (as determined by the Board of Directors of the Borrower in the case of sales in excess of $500,000) and for proceeds consisting solely of not less than (A) 80% cash and (B) seller indebtedness evidenced by promissory notes which notes shall be pledged and delivered to the Collateral Agent pursuant to the Borrower Pledge Agreementthereof, and (y) the Net Cash Proceeds of any such sale are applied to repay the Loans to the extent required by Section 4.02(A)(c), 3.02(A)(c) and provided -------- further, that (z) the sale or disposition of the capital stock of (i) the ------- Borrower or any Subsidiary Guarantor shall be prohibited and (ii) any Subsidiary of the Borrower (other than a Subsidiary Guarantor) Partnership shall be prohibited unless it is for all of the outstanding capital stock of such Subsidiary owned by the Borrower;
(g) other sales or dispositions of assets in each case to the extent the Required Lenders have consented in writing thereto and subject to such conditions as may be set forth in such consent;
(h) any Subsidiary may be liquidated into the Borrower or a Subsidiary Guarantor; and
(i) acquisitions and dispositions of Permitted Acquisitions, Permitted Investments and Permitted Joint Ventures in accordance with Section 8.06(g)Subsidiary.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. The ------------------------------------------------------- Borrower Holdings will not, and will not permit any Subsidiary to, wind up, liquidate or dissolve its affairs, or enter into any transaction of merger or consolidation, sell or convey, sell, lease or otherwise dispose of all or any part of its property or assets (other than inventory or worn-out or obsolete equipment or excess equipment no longer needed in the conduct of the business business, in each case in the ordinary course of business) or purchase, lease or otherwise acquire all or any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, leases, materials materials, supplies and equipment equipment, in each case in the ordinary course of business) or agree to do any of the foregoing at any future timetime without a contingency relating to obtaining any required approval hereunder, except that the following shall be permitted:
(a) (i) any Subsidiary of the Borrower may be merged or consolidated with or into, or be liquidated into, the Borrower or a Subsidiary Guarantor Qualified Credit Party (so long as a Qualified Credit Party (which must be the Borrower or in the case of any such Subsidiary Guarantor transaction with the Borrower) is the surviving corporation), and (ii) the Borrower or any Subsidiary thereof may, in the ordinary course of -50- business consistent with past practices, convey, sell, lease or otherwise transfer all or any part of its business, properties and assets may be conveyed, leased, sold or transferred to the Borrower or any Subsidiary Guarantor (or any other Subsidiary), provided 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 SubsidiaryQualified Credit Party;
(b) capital expenditures Consolidated Capital Expenditures may be made by the Borrower and its Subsidiaries to the extent within the limitations set forth in Section 8.05 hereof, and Reinvestment Assets may be acquired as specifically permitted by Section 4.02(A)(c) hereof;
(c) the investments, acquisitions and transfers or dispositions of properties permitted pursuant to Section 8.06;
(d) each of the Borrower and the any Subsidiary Guarantors 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(d8.04(c) and (j));
(e) licenses or sublicenses by the Borrower and its Subsidiary Guarantors Subsidiaries of software, customer lists, trademarks and other intellectual property in the ordinary course of business, providedPROVIDED, that such licenses or sublicenses shall not interfere with the business of the Borrower or any Subsidiary Guarantorexcept, in the case of any such license or sublicense by a Foreign Subsidiary, as is not reasonably likely to have Material Adverse Effect;
(f) other sales or dispositions (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 ordinary course time of businesssuch 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), provided that (w) the aggregate Net Cash Proceeds received from -------- all such sales and dispositions shall permitted by this sub-clause (B) do not exceed $1,500,000 30,000,000 in any fiscal year of the Borroweraggregate, PROVIDED that (x1) each such sale pursuant to this Section 8.02(f) shall be result in the Borrower or the respective Subsidiary receiving consideration in an amount at least equal to the fair market value thereof (as determined by the Board of Directors of the Borrower in the case assets sold, which consideration shall consist of sales in excess of $500,000) and for proceeds consisting solely of not less than (A) 80at least 75% cash (with the assumption of Indebtedness and the sale for cash within 30 days of receipt of securities received calculated as cash), (B) seller indebtedness evidenced by promissory notes which notes shall be pledged and delivered to the Collateral Agent pursuant to the Borrower Pledge Agreement, and (y2) the Net Cash Proceeds of any such 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 Effective Date pursuant to this clause (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 provided -------- furtherits 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 the capital stock of (i) the ------- Borrower or any Subsidiary Guarantor shall be prohibited and (ii) any Subsidiary Equity Interests of the Borrower (other than a Subsidiary Guarantor) shall be prohibited unless it is for all prohibited, except that 100% of the outstanding capital stock Equity Interests of such Subsidiary owned by the BorrowerBorrower may be transferred to Intermediate Holdco contemporaneously with or after the establishment of same in accordance with the definition thereof;
(g) other sales or dispositions of assets in each case to the extent the Required Lenders have consented in writing thereto and subject to such conditions as may be set forth in such consentAcquisition;
(h) any Subsidiary may be liquidated into leases and subleases permitted under Section 8.03(g);
(i) the Borrower and any of its Domestic Subsidiaries may convey, sell, lease or a 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) the Borrower and any of its Subsidiaries may convey, sell, lease or otherwise transfer assets to any Joint Venture, PROVIDED that the fair market value (as determined by the Borrower in good faith) of the 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 conveyance, sale or transfer;
(k) Foreign Subsidiaries may sell assets pursuant to Sale/Leaseback Transactions so long as at no time shall the aggregate amount of the 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 GuarantorDebt Amount as then in effect;
(l) Foreign Subsidiaries may convey, sell, lease or otherwise transfer assets to other Foreign Subsidiaries;
(m) Foreign Subsidiaries may sell receivables and 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 (without 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
(in) acquisitions the Borrower and dispositions its Subsidiaries may sell (without recourse) receivables (and related assets) arising from goods and services provided to Honeywell International Inc. pursuant to factoring arrangements entered into in the ordinary course of business consistent with past practices so long as at no time shall the aggregate amount of Permitted Acquisitions, Permitted Investments and Permitted Joint Ventures in accordance with Section 8.06(g)Honeywell Receivables Transaction Outstandings arising from such factoring arrangements exceed $1,500,000.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. The ------------------------------------------------------- Borrower Borrowers will not, and will not permit any Subsidiary to, wind up, liquidate or dissolve its affairs, or enter into consummate any transaction of merger or consolidation, sell or otherwise dispose of all or make 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) Asset Sale or purchase, lease or otherwise 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 timetime without a contingency relating to obtaining any required approval hereunder, except that the following shall be permitted:
(a) any Inactive Subsidiary of the Borrower may be merged or consolidated with or into, or be liquidated into, the any Borrower or a Subsidiary Guarantor (so long as the such Borrower or such Subsidiary Guarantor is the surviving corporation), or all or any part of its business, properties and assets may be conveyed, leased, sold or transferred to the any Borrower or any Subsidiary Guarantor (or any other Subsidiary), provided 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 SubsidiaryGuarantor;
(b) capital expenditures Consolidated Capital Expenditures to the extent within the limitations set forth in Section 8.05 hereof7.05;
(c) the investments, acquisitions and transfers or dispositions of properties properties, shares and assets permitted pursuant to Section 8.067.06;
(d) each of the any Borrower and the any Subsidiary Guarantors may lease (as lessee) real or personal property 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(d7.04(c));
(e) licenses or sublicenses by the Borrower Borrowers and its Subsidiary Guarantors their Subsidiaries of software, customer lists, trademarks and other intellectual property in the ordinary course of business, ; provided, that such licenses or sublicenses shall not interfere with the business of the any Borrower or any Subsidiary GuarantorSubsidiary;
(f) other sales or dispositions leases and subleases permitted under Section 7.03(d) and (g); and
(g) a sale of assets in the ordinary course of business, provided that (w) the aggregate Net Cash Proceeds received from -------- all such sales and dispositions shall not exceed $1,500,000 in any fiscal year under Section 363 of the Borrower, (x) each such sale shall be in an amount at least equal Bankruptcy Code to the fair market value thereof (as determined by the Board of Directors of the Borrower in the case of sales in excess of $500,000) and for proceeds consisting solely of not less than (A) 80% cash and (B) seller indebtedness evidenced by promissory notes which notes shall be pledged and delivered to the Collateral Agent pursuant to the Borrower Pledge Agreement, and (y) extent the Net Cash Proceeds of any such sale are applied sufficient to repay pay all Loans, together with interest, Fees and all other Obligations incurred hereunder and under the Loans other Credit Documents in full (and to cash collateralize in a manner satisfactory to the extent required by Section 4.02(A)(c)Administrative Agent, and provided -------- further, that the sale or disposition all outstanding Letters of the capital stock of (i) the ------- Borrower or any Subsidiary Guarantor shall be prohibited and (ii) any Subsidiary of the Borrower (other than a Subsidiary Guarantor) shall be prohibited unless it is for all of the outstanding capital stock of such Subsidiary owned by the Borrower;
(g) other sales or dispositions of assets in each case to the extent the Required Lenders have consented in writing thereto and subject to such conditions as may be set forth in such consent;
(h) any Subsidiary may be liquidated into the Borrower or a Subsidiary Guarantor; and
(i) acquisitions and dispositions of Permitted Acquisitions, Permitted Investments and Permitted Joint Ventures in accordance with Section 8.06(gCredit).
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Consolidation, Merger, Sale or Purchase of Assets, etc. The ------------------------------------------------------- Borrower will not, and will not permit any Subsidiary of its Subsidiaries to, wind up, liquidate or dissolve its affairs, affairs or enter into any transaction of merger or consolidation, sell 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 inventory, obsolete equipment or excess equipment no longer needed equipment, in the conduct of the business each case in the ordinary course of business) ), or purchaseenter into any partnerships, lease joint ventures or sale-leaseback transactions, or purchase or otherwise acquire all (in one 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 of any of the foregoing at any future timePerson, except that the following shall be permitted:
(a) Consolidated Capital Expenditures by the Borrower and its Subsidiaries to the extent not in violation of Section 8.05, and the Borrower and its Subsidiaries may enter into operating leases as lessee with respect to real or personal property in the ordinary course of business and otherwise in compliance with this Agreement;
(i) the Borrower and the Subsidiary Guarantors (other than Specified Subsidiaries) may transfer assets among themselves, (ii) Foreign Subsidiaries may transfer assets among themselves and (iii) the Borrower and/or the Subsidiary Guarantors may make investments (other than in connection with an acquisition) in Foreign Subsidiaries provided that at any Subsidiary time the aggregate amount of investments so made after the Effective Date pursuant to this clause (b)(iii), when added to (I) all then outstanding intercompany Indebtedness incurred by Foreign Subsidiaries pursuant to 8.04(d)(iv) and (II) the aggregate cash and cash equivalents plus the aggregate market value of all other consideration (other than the common stock of the Borrower may be merged or consolidated with or into, or be liquidated into, and not including any Indebtedness assumed in connection therewith) then and theretofore paid by the Borrower or a Subsidiary Guarantor (so long as and its Subsidiaries after the Borrower or Effective Date pursuant to Permitted Acquisitions with respect to Foreign Acquired Businesses, will not exceed the Permitted Foreign Investment Amount at such Subsidiary Guarantor is the surviving corporation), or all or any part of its business, properties and assets may be conveyed, leased, sold or transferred to the Borrower or any Subsidiary Guarantor (or any other Subsidiary), provided 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;
(b) capital expenditures to the extent within the limitations set forth in Section 8.05 hereoftime;
(c) the investmentsadvances, acquisitions investments and transfers or dispositions of properties loans permitted pursuant to Section 8.06;
(d) each of the Borrower and the Subsidiary Guarantors may lease (as lessee) real or personal property 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(d));
(e) licenses or sublicenses by the Borrower and its Subsidiary Guarantors of softwareSubsidiaries may sell or discount, customer listsin each case without recourse, trademarks and other intellectual property accounts receivables arising in the ordinary course of business, provided, that such licenses or sublicenses shall not interfere but only in connection with the business of the Borrower compromise or any Subsidiary Guarantorcollection thereof;
(fe) other sales the Borrower and its Subsidiaries may sell or dispositions otherwise dispose of assets in the ordinary course of businessfor cash, provided that (w) the aggregate Net Cash Proceeds received net cash proceeds from -------- all such sales and dispositions pursuant to this clause (e) shall not exceed $1,500,000 20,000,000 in any fiscal year of the Borrower;
(f) the Borrower may acquire assets or the capital stock of any Person, including by merger of the Acquired Business with a Subsidiary Guarantor so long as the survivor of such merger is, or becomes at such time, a Subsidiary Guarantor (xany such acquisition, a ""Permitted Acquisition'' and the date of consummation of any such acquisition, an ""Acquisition Date''), provided that (i) each the sum of the aggregate cash and Cash Equivalents plus the aggregate market value of all other consideration paid by the Borrower and its Subsidiaries (including any Indebtedness assumed by the Borrower or any Subsidiary) in connection with any Acquired Business acquired in such sale Permitted Acquisition shall be not exceed $100,000,000 (or, in an amount the case where at least equal 90% of the total consideration (not including any Indebtedness assumed by the Borrower and/or any Subsidiary) paid for an Acquired Business consists of the common stock of the Borrower, $200,000,000); (ii) at least one-third of the sum of the aggregate cash and Cash Equivalents plus the aggregate market value of all other consideration paid in respect of all Permitted Acquisitions and all Other Designated Acquisitions consummated during any six month period shall have been paid in the form of non-redeemable common equity of the Borrower; (iii) no Default or Event of Default exists at the time of such acquisition or will exist as a result thereof; (iv) in respect of each Permitted Acquisition (or of all Permitted Acquisitions closing on the same date), the Borrower shall have delivered to the fair market value thereof (as determined Agent an officer's certificate executed by the Board of Directors an Authorized Officer of the Borrower in the case of sales in excess of $500,000) and for proceeds consisting solely of not less than demonstrating that (A) 80% cash the Acquired Business the subject of such Permitted Acquisition (or Acquisitions), when combined with all other Acquired Businesses the subject of Permitted Acquisitions and Other Designated Acquisitions consummated during the six month period ending on the respective Acquisition Date, would have been in compliance with Sections 8.09 and 8.10 of this Agreement as applicable to such Acquired Businesses on a combined basis, in each case, for the last Test Period of the Borrower then ended and (B) seller indebtedness evidenced by promissory notes which notes shall be pledged and delivered to on a pro forma basis determined as if such Permitted Acquisition (or Acquisitions) had been consummated on the Collateral Agent pursuant to the Borrower Pledge Agreement, and (y) 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 disposition first day of the capital stock of (i) the ------- Borrower or any Subsidiary Guarantor shall be prohibited and (ii) any Subsidiary last Test Period of the Borrower then ended, the Borrower would have been in compliance with Sections 8.09 and 8.10 of this Agreement for such Test Period; (other than a Subsidiary Guarantorv) each such Acquired Business shall be prohibited unless it located in the United States or an Approved Country; and (vi) after giving effect thereto, the proviso in Section 8.02(b)(iii) is for all of the outstanding capital stock of such Subsidiary owned by the Borrowersatisfied;
(g) other sales or dispositions of assets in each case to the extent Borrower may acquire the Required Lenders have consented in writing thereto and subject to such conditions as may be set forth in such consentPersons and/or businesses listed on Annex VIII hereto (""Section 8.02(g) Acquisitions'');
(h) any Subsidiary may be liquidated into the Borrower may acquire assets of or a Subsidiary Guarantor; and
(i) the capital stock of or other ownership interest in any Person so long as the aggregate cash and Cash Equivalents plus the aggregate market value of all other consideration paid in connection with all such acquisitions and dispositions investments consummated after the Effective Date shall not exceed $5,000,000 in any fiscal year of Permitted Acquisitions, Permitted Investments and Permitted Joint Ventures in accordance with Section 8.06(g).the Borrower;
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