Consolidation, Merger, Sale or Purchase of Assets, etc. No Borrower ------------------------------------------------------- will, nor will any Borrower permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its property or assets (other than sales of inventory and obsolete or worn-out equipment, in each case in the ordinary course of business), or enter into any partnerships, joint ventures or sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person, except that the following shall be permitted: (a) Consolidated Capital Expenditures by Workflow and its Subsidiaries to the 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 personal property in the ordinary course of business and otherwise in compliance with this Agreement; (i) 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 permitted by Section 8.04(d); (c) Investments permitted pursuant to Section 8.06; (d) Workflow 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 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 sales pursuant to this -------- clause (e) shall not exceed, in the aggregate, $10,000,000 in any two consecutive fiscal year period of Workflow; (f) the Credit Parties may acquire all or substantially all of the assets of any Acquired Business (or all or substantially all of the assets of a product line or division of any Acquired Business) or 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 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 equal to $50,000,000 so long as least 90% of such aggregate consideration shall 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) no Default or Event of Default exists at the time of such Permitted Acquisition or will exist as a result thereof, (iii) all of the representations and warranties set forth in this Agreement are true and correct in all material respects, both before and after giving effect to any such Permitted 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 (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 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
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. No The ------------------------------------------------------- Borrower ------------------------------------------------------- willwill not, nor will any the Borrower permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger merger, amalgamation or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its property or assets (other than sales of inventory and obsolete or worn-out equipment, in each case in the ordinary course of business), or enter into any partnerships, joint ventures or sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials materials, general intangibles and equipment in the ordinary course of business) of any PersonPerson or agree to do any of the foregoing at any future time, except that the following shall be permitted:
(a) Consolidated Capital Expenditures by Workflow 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 extent not in violation 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 8.05, and Workflow 8.13;
(c) the Borrower and its Subsidiaries may enter into operating leases as lessee license and sublicense agreements of software, customer lists, trademarks and other intellectual property with respect to real Cendant or personal property one or more of its Subsidiaries and otherwise in the ordinary course of business and otherwise in compliance with this Agreementbusiness;
(d) the Borrower and its Subsidiaries may make (i) Workflow and investments in 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, Hunneman Mortgage Corporation in connection with the respective Security Documents) may transfer assets among themselves, residential mortgage business or (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 permitted by Section 8.04(d)investments in connection with Cash Secured Loans;
(ce) Investments permitted pursuant to Section 8.069.05 and the disposition or liquidation of Cash Equivalents in the ordinary course of business;
(dg) Workflow the Borrower or any Subsidiary of the Borrower may convey, lease, license, sell or otherwise transfer all or any part of its business, properties and assets to the Borrower or 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 of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower or any Guarantor, so long as (i) the Borrower 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 shall remain 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 merged or amalgamated with and into, or be dissolved or liquidated into, or transfer any of its assets to, any other Wholly-Owned Foreign Subsidiary of the Borrower, so long as (i) a Wholly-Owned Foreign 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;
(j) the Borrower and its Domestic Subsidiaries may transfer assets to Wholly-Owned Foreign Subsidiaries, so long as (x) no Default or Event of Default exists as the time of the respective transfer and (y) the aggregate fair market value of all such assets so transferred (determined in good faith by the Board of Directors or senior management of the Borrower) to all such Foreign Subsidiaries 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 Borrower and any Guarantor, pursuant to Section 9.02(g);
(k) the Borrower and its Subsidiaries may sell lease, as lessor, or discountsublease, in each case without recourseas sublessor, accounts receivables arising equipment, machinery or Real Property in the ordinary course of business, but only so long as such lease is for fair consideration (determined in connection with good faith by the compromise Board of Directors or collection thereof and not as part senior management of any financing transactionthe Borrower);
(el) Workflow the Borrower and any of its Subsidiaries may sell or otherwise dispose of assets the capital stock of, or other equity interests in, any of their respective Subsidiaries, Unrestricted Subsidiaries and Joint Ventures which, in the reasonable opinion of such Person, are uneconomic or no longer useful in the conduct of such Person's business, provided that (including pursuant v) -------- in the case of a sale or other disposition of the capital stock or other equity interests of any Wholly-Owned Subsidiary of the Borrower, 100% of the capital stock or other equity interests of such Subsidiary shall be so sold or disposed of, (w) each such sale or disposition shall be for an amount at least equal to a sale-leaseback transaction) for cash and at the fair market value thereof (as determined in good faith by Workflow or such Subsidiarysenior management of the Borrower), provided that (x) each such sale results in consideration at least 80% of which (taking the amount of cash, the principal amount of any promissory notes and the fair market value, as determined by the Borrower in good faith, of any other consideration) shall be in the form of cash, (y) the aggregate cash proceeds from Net Sale Proceeds of all such sales assets sold or otherwise disposed of pursuant to this -------- clause (el) after the Restatement Effective Date shall not exceed, in the aggregate, exceed $10,000,000 in any two consecutive fiscal year period 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 Workflowthis Agreement;
(fm) the Credit Parties Borrower and its Subsidiaries may acquire all enter into agreements to effect acquisitions and dispositions of stock or substantially all of the assets of any Acquired Business (or all or substantially all of the assets of a product line or division of any Acquired Business) or 100% of the capital stock of any Acquired Business (including by merger of the Acquired Business with a Credit Party assets, so long as the survivor respective transaction is permitted pursuant to the provisions of such merger isthis 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, or becomes at such time, a Credit Party although so long as in the case of each such agreement, such agreement shall be 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 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 and its Subsidiaries under 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 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 agreement shall not exceed $35,000,000 1,000,000; and
(n) the Borrower or any 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 and its Subsidiaries from all Permitted Sale-Leaseback Transactions consummated on and after the Restatement Effective Date shall not exceed $10,000,000. To the extent the Required 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 Collateral (unless transferred to the Borrower or a Subsidiary thereof) shall (except that the total consideration for each as otherwise provided above) be sold or otherwise disposed 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 equal to $50,000,000 so long as least 90% of such aggregate consideration shall 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) no Default or Event of Default exists at the time of such Permitted Acquisition or will exist as a result thereof, (iii) all free and clear of the representations Liens created by the Security Documents and warranties set forth in this Agreement the Administrative Agent shall take such actions (including, without limitation, directing the Collateral Agent to take such actions) as are true and correct in all material respects, both before and after giving effect to any such Permitted 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 (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 Indebtedness incurred, issued or assumed appropriate 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 Periodtherewith.
Appears in 1 contract
Samples: Credit Agreement (NRT Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. No The Borrower ------------------------------------------------------- willwill not, nor and will any Borrower not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs affairs, or enter into any transaction of merger or consolidation, or convey, sell, lease sell or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its property or assets (other than sales inventory or obsolete equipment or excess equipment no longer needed in the conduct of inventory and obsolete or worn-out equipment, in each case the business in the ordinary course of business)) or purchase, or enter into any partnerships, joint ventures or sale-leaseback transactions, or purchase lease or otherwise acquire (in one all or a series of related transactions) any part of the property or assets of any Person (other than leases, purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) ), or agree to do any of the foregoing at any Personfuture time, except that the following shall be permitted:
(a) any Wholly-Owned Subsidiary of the Borrower may be merged or consolidated with or into, or be liquidated into, the Borrower or a Subsidiary Guarantor that is a Wholly-Owned Domestic Subsidiary of the Borrower (so long as the Borrower or such Subsidiary Guarantor, as the case may be, is the surviving corporation), or all or any part of the business, properties or assets of any Wholly-Owned Subsidiary of the Borrower may be conveyed, leased, sold or transferred to the Borrower or any Subsidiary Guarantor that is a Wholly-Owned Domestic Subsidiary of the Borrower;
(b) Consolidated Capital Expenditures by Workflow and its Subsidiaries to the extent not within the limitations set forth in violation of Section 8.05;
(c) the investments, acquisitions and Workflow transfers or dispositions of properties permitted pursuant to Section 8.06;
(d) the Borrower and its Subsidiaries may enter into operating leases lease (as lessee with respect to lessee) real or personal property in the ordinary course of business and (so long as such lease does not create a Capitalized Lease Obligation not otherwise in compliance with this Agreement;
(i) 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 permitted by Section 8.04(d));
(ce) Investments permitted pursuant to Section 8.06;
(d) Workflow licenses or sublicenses by the Borrower and its Subsidiaries may sell or discountof software, in each case without recoursecustomer lists, accounts receivables arising trademarks, service marks, patents, trade names and copyrights and other intellectual property in the ordinary course of business, but only provided, that such licenses or sublicenses shall not interfere with the business of the Borrower or any such Subsidiary;
(f) other sales or dispositions of assets in the ordinary course of business which shall include dispositions of equipment in the ordinary course of business (other than assets disposed of in connection with a Recovery Event), provided that (x) the compromise or collection thereof aggregate Net Cash Proceeds received from all such sales and dispositions shall not as part exceed $2,500,000 in any fiscal year of any financing transaction;
the Borrower, (ey) Workflow and its Subsidiaries may sell or otherwise dispose of assets (including pursuant each such sale shall be in an amount at least equal to a sale-leaseback transaction) for cash and at the fair market value thereof (as determined in good faith by Workflow the Borrower) and for proceeds consisting solely of not less than (A) 75% cash and (B) seller indebtedness evidenced by promissory notes, which promissory notes shall be pledged and delivered to the Collateral Agent pursuant to the Pledge Agreement, and (z) 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) any Subsidiary Guarantor shall be prohibited and (ii) any other Subsidiary of the Borrower shall be prohibited unless it is for all of the outstanding capital stock of such Subsidiary owned by the Borrower and its Subsidiaries;
(g) other sales or dispositions of assets (or similar transactions) in each case to the extent the Required Banks have consented in writing thereto and subject to such conditions as may be set forth in such consent;
(h) any Subsidiary of the Borrower (including any Subsidiary Guarantor so long as the assets of such Subsidiary Guarantor are transferred pursuant to Section 8.02(j)) may be liquidated into the Borrower or a Subsidiary Guarantor that is a Wholly-Owned Domestic Subsidiary of the Borrower;
(i) the Borrower and its Subsidiaries may, in the ordinary course of business, sell, transfer or otherwise dispose of patents, trademarks, service marks, trade names and copyrights which, in the reasonable judgment of the Borrower or such Subsidiary), provided that the aggregate cash proceeds from all such sales pursuant are determined to this -------- clause (e) shall not exceedbe uneconomical, negligible or obsolete in the aggregate, $10,000,000 in any two consecutive fiscal year period conduct of Workflowits business;
(fj) any Subsidiary of the Credit Parties Borrower may transfer assets to the Borrower or to a Subsidiary Guarantor that is a Wholly-Owned Domestic Subsidiary of the Borrower so long as the security interests granted to the Collateral Agent 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).
(k) each of the Borrower and its Subsidiaries may acquire all or substantially all of the assets of any Acquired Business Person (or all or substantially all of the assets of a product line or division of any Acquired BusinessPerson) or 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) Person (any such acquisitionacquisition permitted by this clause (k), a "Permitted Acquisition" and the date of consummation of any such Permitted Acquisition, an "Acquisition Date"), provided that (i) the 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 equal to $50,000,000 so long as least 90% of such aggregate consideration shall 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) no Default or Event of Default then exists at the time of such Permitted Acquisition or will exist as a would result thereoftherefrom, (iiiii) all each of the representations and warranties set forth contained in this Agreement are Section 6 shall be true and correct in all material respects, respects both before and after giving effect to any such Permitted AcquisitionAcquisitions, (iii) any liens or Indebtedness assumed or issued in connection with such acquisition are otherwise permitted under Section 8.03 or 8.04 as the case may be, (iv) in respect of each Permitted Acquisition (or the value of all consideration paid in connection therewith (including Indebtedness assumed or incurred) for all of the Permitted Acquisitions closing on shall not exceed $25,000,000, (v) the same date)Borrower shall be in pro forma compliance with all financial covenants in this Agreement before and after giving effect to such Permitted Acquisitions, Workflow shall have delivered to (vi) the Agent an officer's certificate executed by an Authorized Financial Officer of Workflow demonstrating Leverage Ratio (in reasonable detail) that (A) calculated on a pro forma basis determined as --- ----- if after giving effect to such Permitted Acquisition (or AcquisitionsAcquisition) had been consummated on the first day of the last Borrower is 0.5x less than the Leverage Ratio required to be met for the Test Period of Workflow then period most recently ended (and assuming that any Indebtedness incurred, issued or assumed in connection therewith had been incurred, issued or assumed on prior to the first day ofPermitted Acquisition, and had remained outstanding throughout(vii) after giving effect to such Permitted Acquisition, the Total Unutilized Revolving Commitment shall not be less than $7,500,000. To the extent the Required Banks waive the provisions of this Section 8.02 with respect to the sale or other disposition of any Collateral, or any Collateral is sold or otherwise disposed of as permitted by this Section 8.02, such Test Period)Collateral (unless sold to the Borrower or a Subsidiary of the Borrower) shall be sold or otherwise disposed of free and clear of the Liens created by the Security Documents, Workflow would have been and the Administrative Agent and Collateral Agent shall be authorized to take any actions deemed appropriate in compliance with Sections 8.09 and 8.10 for such Test Periodorder to effect the foregoing.
Appears in 1 contract
Samples: Credit Agreement (Penhall Co)
Consolidation, Merger, Sale or Purchase of Assets, etc. No The ------------------------------------------------------- Borrower ------------------------------------------------------- willwill not, nor will any the Borrower permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger merger, amalgamation or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its property or assets (other than sales of inventory and obsolete or worn-out equipment, in each case in the ordinary course of business), or enter into any partnerships, joint ventures or sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials materials, general intangibles and equipment in the ordinary course of business) of any PersonPerson or agree to do any of the foregoing at any future time, except that the following shall be permitted:
(a) Consolidated Capital Expenditures by Workflow 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 extent not in violation requirements of Section 8.05, and Workflow 8.13;
(c) the Borrower and its Subsidiaries may enter into operating leases as lessee license and sublicense agreements of software, customer lists, trademarks and other intellectual property with respect to real Cendant or personal property one or more of its Subsidiaries and otherwise in the ordinary course of business and otherwise in compliance with this Agreementbusiness;
(d) the Borrower and its Subsidiaries may make (i) Workflow and investments in 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, Hunneman Mortgage Corporation in connection with the respective Security Documents) may transfer assets among themselves, residential mortgage business or (ii) DBF investments in connection with Arbitrage Loans;
(e) Investments permitted pursuant to Section 9.05 and the other Canadian Credit Parties disposition or liquidation of Cash Equivalents in the ordinary course of business;
(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 Documentsf) may transfer replacement 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 or retained to the extent permitted by Section 8.04(d4.02(b) and/or the other relevant provisions of this Agreement;
(g) the Borrower or any Subsidiary of the Borrower may convey, lease, license, sell or otherwise transfer all or any part of its business, properties and assets to the Borrower or 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 of the Borrower may merge with and into, or be dissolved or liquidated into, the Borrower or any Guarantor, so long as (i) the Borrower 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 shall remain 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 merged or amalgamated with and into, or be dissolved or liquidated into, or transfer any of its assets to, any other Wholly-Owned Foreign Subsidiary of the Borrower, so long as (i) a Wholly-Owned Foreign 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;
(j) the Borrower and its Domestic Subsidiaries may transfer assets to Wholly-Owned Foreign Subsidiaries, so long as (x) no Default or Event of Default exists as the time of the respective transfer and (y) the aggregate fair market value of all such assets so transferred (determined in good faith by the Board of Directors or senior management of the Borrower) to all such Foreign Subsidiaries 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 Borrower and any Guarantor, pursuant to Section 9.02(g);
(ck) Investments permitted pursuant to Section 8.06;
(d) Workflow the Borrower and its Subsidiaries may sell lease, as lessor, or discountsublease, in each case without recourseas sublessor, accounts receivables arising equipment, machinery or Real Property in the ordinary course of business, but only so long as such lease is for fair consideration (determined in connection with good faith by the compromise Board of Directors or collection thereof and not as part senior management of any financing transactionthe Borrower);
(el) Workflow the Borrower and any of its Subsidiaries may sell or otherwise dispose of assets (including pursuant to a sale-leaseback transaction) for cash the capital stock of, or other equity interests in, any of their respective Subsidiaries, Unrestricted Subsidiaries and at fair market value (as determined Joint Ventures which, in good faith by Workflow the reasonable opinion of such Person, are uneconomic or no longer useful in the conduct of such Subsidiary)Person's business, provided that the aggregate cash proceeds from all such sales pursuant to this -------- clause (e) shall not exceed, in the aggregate, $10,000,000 in any two consecutive fiscal year period of Workflow;
(f) the Credit Parties may acquire all or substantially all of the assets of any Acquired Business (or all or substantially all of the assets of a product line or division of any Acquired Business) or 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 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 equal to $50,000,000 so long as least 90% of such aggregate consideration shall 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) no Default or Event of Default exists at the time of such Permitted Acquisition or will exist as a result thereof, (iii) all of the representations and warranties set forth in this Agreement are true and correct in all material respects, both before and after giving effect to any such Permitted 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 (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 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--------
Appears in 1 contract
Samples: Credit Agreement (NRT Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. No The Borrower ------------------------------------------------------- willwill not, nor and will any Borrower not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its property or assets (other than sales of inventory and inventory, obsolete equipment or worn-out excess equipment, in each case in the ordinary course of business), or enter into any partnerships, joint ventures or sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Consolidated Capital Expenditures by Workflow the Borrower and its Subsidiaries to the extent not in violation of Section 8.05, and Workflow 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) Workflow the Borrower 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 DocumentsSubsidiaries) may transfer assets among themselves, (ii) DBF and the other Canadian Credit Parties (other than Specified Foreign 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 Borrower and/or the Subsidiary Guarantors may make investments (other than in connection with an acquisition) in Foreign Subsidiaries provided that at any 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 loans Indebtedness incurred by Foreign Subsidiaries pursuant to 8.04(d)(iv) and (II) the extent permitted aggregate cash and cash equivalents plus the aggregate market value of all other consideration (other than the common stock of the Borrower and not including any Indebtedness assumed in connection therewith) then and theretofore paid by Section 8.04(d)the Borrower and its Subsidiaries after the Effective Date pursuant to Permitted Acquisitions with respect to Foreign Acquired Businesses, will not exceed the Permitted Foreign Investment Amount at such time;
(c) Investments the advances, investments and loans permitted pursuant to Section 8.06;
(d) Workflow 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 and not as part of any financing transactionthereof;
(e) Workflow the Borrower 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)cash, provided that the aggregate net cash proceeds from all such sales pursuant to this -------- clause (e) shall not exceed, in the aggregate, exceed $10,000,000 20,000,000 in any two consecutive fiscal year period of Workflowthe Borrower;
(f) the Credit Parties Borrower may acquire all assets or substantially all of the assets of any Acquired Business (or all or substantially all of the assets of a product line or division of any Acquired Business) or 100% of the capital stock of any Acquired Business (Person, including by merger of the Acquired Business with a Credit Party Subsidiary Guarantor 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) Subsidiary Guarantor (any such acquisition, a ""Permitted Acquisition" '' and the date of consummation of any such Permitted Acquisitionacquisition, an ""Acquisition Date"''), provided that (i) the sum of the -------- aggregate cash consideration and Cash Equivalents plus the aggregate fair market value of all other consideration paid by the Credit Parties Borrower and its Subsidiaries (including any Indebtedness issued, incurred and/or assumed by the Credit Parties and Borrower or any capital stock issued by Workflow, but excluding any amounts paid through an earn-out formula based on earningsSubsidiary) in connection with any Acquired Business acquired in such Permitted Acquisition shall not exceed $35,000,000 100,000,000 (except that or, in 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 equal to $50,000,000 so long as case where at least 90% of such 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 consist have been paid in the form of non-redeemable common stock and/or Qualified Preferred Stock equity of Workflow the Borrower; (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)), (iiiii) no Default or Event of Default exists at the time of such Permitted Acquisition acquisition or will exist as a result thereof, (iii) all of the representations and warranties set forth in this Agreement are true and correct in all material respects, both before and after giving effect to any such Permitted Acquisition, ; (iv) in respect of each Permitted Acquisition (or of all Permitted Acquisitions closing on the same date), Workflow the Borrower shall have delivered to the Agent an officer's certificate executed by an Authorized Financial Officer of Workflow the Borrower demonstrating (in reasonable detail) that (A) 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) 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 the Borrower then ended (and assuming that any Indebtedness incurredended, 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 Borrower would have been in compliance with Sections 8.09 and 8.10 of this Agreement for such Test Period; (v) each such Acquired Business shall be located in the United States or an Approved Country; and (vi) after giving effect thereto, the proviso in Section 8.02(b)(iii) is satisfied;
(g) the Borrower may acquire the Persons and/or businesses listed on Annex VIII hereto (""Section 8.02(g) Acquisitions'');
(h) the Borrower may acquire assets of or 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 investments consummated after the Effective Date shall not exceed $5,000,000 in any fiscal year of the Borrower;
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. No Borrower ------------------------------------------------------- will, nor will any Borrower permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its property or assets (other than sales of inventory and obsolete or worn-out equipment, in each case in the ordinary course of business), or enter into any partnerships, joint ventures or sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Consolidated Capital Expenditures by Workflow and its Subsidiaries to the 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 personal property in the ordinary course of business and otherwise in compliance with this Agreement;
(i) 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, themselves and (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 permitted by Section 8.04(d);
(c) Investments permitted pursuant to Section 8.06;
(d) Workflow 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 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 sales pursuant to this -------- clause (e) shall not exceed, in the aggregate, $10,000,000 in any two consecutive fiscal year period of Workflow;
(f) the Credit Parties may acquire all or substantially all of the assets of any Acquired Business (or all or substantially all of the assets of a product line or division of any Acquired Business) or 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 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 equal to $50,000,000 so long as least 90% of such aggregate consideration shall 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) no Default or Event of Default exists at the time of such Permitted Acquisition or will exist as a result thereof, (iii) all of the representations and warranties set forth in this Agreement are true and correct in all material respects, both before and after giving effect to any such Permitted 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 (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 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;
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. No Holdings and the Borrower ------------------------------------------------------- willwill not, nor and will any Borrower not permit any of its their respective Subsidiaries to, wind up, liquidate or dissolve its affairs affairs, or enter into any transaction of merger or consolidation, sell or conveyotherwise dispose of all or any part of its property or assets, sellor enter into any sale-leaseback transactions, or purchase, lease or otherwise dispose acquire (in one transaction or a series of (related transactions) all or any part of the property or assets of any Person or agree to do any of the foregoing at any future time) all or any part of its property or assets (other than sales of inventory and obsolete or worn-out equipment, in each case in the ordinary course of business), or enter into any partnerships, joint ventures or sale-leaseback transactions, or purchase or otherwise acquire (in one or time pursuant to a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Personbinding agreement, except that the following shall be permitted:
(a) Consolidated (i) Capital Expenditures made by Workflow the Borrower and its Domestic Subsidiaries and Canadian Subsidiaries (including the purchase of assets in the form of additional Rental Equipment) to the extent within the limitations set forth in Section 8.4 and (ii) Capital Expenditures made by the Borrower’s Non-Canadian Foreign Subsidiaries;
(b) the investments, acquisitions and transfers or dispositions of properties permitted pursuant to Section 8.5 and Dividends permitted pursuant to Section 8.6;
(i) any Domestic Subsidiary of the Borrower (excluding the Unit Subsidiary) may be merged or consolidated with or into, or be liquidated into, the Borrower or any Wholly-Owned Domestic Subsidiary of the Borrower (excluding the Unit Subsidiary) (so long as the Borrower or such Wholly-Owned Domestic Subsidiary of the Borrower is the surviving corporation), or all or any part of the business, properties and assets of any Domestic Subsidiary of the Borrower (excluding the Unit Subsidiary) may be conveyed, leased, sold or transferred to the Borrower or any Wholly-Owned Domestic Subsidiary of the Borrower (excluding the Unit Subsidiary except as required by this Credit Agreement), (ii) any Canadian Subsidiary of the Borrower may be merged or consolidated with or into, or be liquidated into, any Wholly-Owned Canadian Subsidiary of the Borrower (so long as such Wholly-Owned Canadian Subsidiary is the surviving corporation), or all or any part of the business, properties and assets of any Canadian Subsidiary of the Borrower may be conveyed, leased, sold or transferred to any Wholly-Owned Canadian Subsidiary of the Borrower or to the Borrower, (iii) any Non-Canadian Foreign Subsidiary may be merged or consolidated with or into, or be liquidated into, any Non-Canadian Foreign Subsidiary that is a Wholly-Owned Subsidiary (so long as such Wholly-Owned Subsidiary is the surviving corporation), or all or any part of the business, properties and assets of any Non-Canadian Foreign Subsidiary may be conveyed, leased, sold or transferred to any Non-Canadian Foreign Subsidiary that is a Wholly-Owned Subsidiary and (iv) all or any part of the capital stock of, or the business, property and assets of, any Foreign Subsidiary of the Borrower may be transferred (by way of Dividend) to the Borrower;
(d) the sale, lease or disposal to third parties (not in violation of Section 8.05, and Workflow and its Subsidiaries may enter into operating leases as lessee with respect to real Holdings or personal property any Subsidiary thereof) in the ordinary course of business of Inventory and otherwise Rental Equipment and the purchase, lease or other acquisition from third parties (not Holdings or any Subsidiary thereof) of equipment, Inventory and Rental Equipment in compliance the ordinary course of business;
(e) the sale or other disposition to third parties (not Holdings or any Subsidiary thereof) of obsolete or excess equipment in the ordinary course of business;
(f) operating leases (and other leases or subleases) of property entered into or terminated in the ordinary course of business; provided that to the extent that any such lease or sublease, as the case may be, constitutes a Capital Lease, such lease or sublease, as the case may be, shall be permitted to be entered into under this Section 8.1(f) only if also permitted to be entered into under Section 8.3(b);
(g) sales and leases to the Borrower of Non-Qualified Units from time to time held by the Unit Subsidiary pursuant to the Master Lease Agreements, provided that in the case of any such sale the respective Non-Qualified Units are contemporaneously sold to a third party as provided in Section 8.1(d);
(h) the sale or return of automobiles and trucks which the Borrower and its Subsidiaries customarily replace periodically with this Agreementsubstitute automobiles and trucks in the ordinary course of business;
(i) Workflow and the U.S. Borrower or any Subsidiary Guarantors (other than Specified Subsidiaries and any U.S. Subsidiary Guarantors that are not required to execute and delivermay, 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 permitted by Section 8.04(d);
(c) Investments permitted pursuant to Section 8.06;
(d) Workflow 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 enter into licensing agreements with Persons for the compromise use of intellectual property or collection thereof other intangible assets, and not as part of any financing transaction;
(e) Workflow settlements, permissions, consents to use, and its Subsidiaries may sell similar arrangements concerning intellectual property 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)other intangible assets, provided that the aggregate cash proceeds from all such sales pursuant to this -------- clause (e) shall not exceed, in the aggregate, $10,000,000 in any two consecutive fiscal year period of Workflow;
(f) the Credit Parties may acquire all or substantially all of the assets of any Acquired Business (or all or substantially all of the assets of a product line or division of any Acquired Business) or 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 agreements, settlements, permissions, consents and similar arrangements to which involves any BorrowerCredit Party is a party, such Credit Party uses reasonable commercial efforts to procure that each such license or other agreements is permitted to be assigned pursuant to the respective Security Agreement to which such Credit Party is a party and does not otherwise prohibit the granting of Lien therein by the respective Credit Party pursuant to such Security Agreement; provided, further, that notwithstanding anything to the contrary contained in this Section 8.1, the Borrower shall be permitted to license trade names and related intellectual property pursuant to the surviving corporationTrade Name License Agreement;
(j) the abandonment or other disposition of intellectual property and other property that is, in the reasonable judgment of the Person owning such intellectual property and other property, no longer economically practicable to maintain or useful in the conduct of the business of such Person;
(any such acquisition, a "Permitted Acquisition" and k) the date sale of consummation of any such Permitted Acquisition, an "Acquisition Date"), provided that (i) the sum of the -------- aggregate cash consideration plus the aggregate fair market value of all other consideration paid by the Credit Parties approximately 7 acres located at Xxxxxxx Xxxx xxxx xx Xxxxx 00, Xxxxxx, Xxx Xxxxxx, (including any Indebtedness issuedxx) approximately 2 acres located at 4015 Xxxxxxx NE, incurred and/or assumed by the Credit Parties Albuquerque, New Mexico, and any capital stock issued by Workflow(iii) approximately 6.5 acres located at 0000 Xxxxxxx Xxxxx, but excluding any amounts paid through an earn-out formula based on earningsXxxx Xxxxxxx, Xxxxxxxx;
(l) in connection with the sale of any Permitted Acquisition shall not exceed $35,000,000 Rental Equipment to a third party as permitted by clause (except that d) above, the total consideration sale of Leases and conditional sales contracts relating to such Rental Equipment, in each case, in the ordinary course of business for each of two Permitted Acquisitions during the term of this Agreement may be up fair market value to $50,000,000), third parties; provided that in no event is any such sale with any recourse to the Credit parties may consummate Permitted Acquisitions seller of such leases and/or conditional sales contracts except for (i) usual and customary warranties in which -------- connection with the aggregate consideration is greater than $35,000,000 but less than sale of the respective Rental Equipment or equal to $50,000,000 (ii) guaranties of the residual value of such Leases so long as least 90% the amount of such aggregate consideration shall consist guarantees 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 type described above in this clause (ii) (calculated taking the maximum potential liability thereunder) at no time outstanding exceeds $5,000,000 in the aggregate;
(m) any Permitted Acquisitions (so long as the applicable requirements set forth in the definition of “Permitted Acquisitions” and in Section 7.17 are satisfied);
(n) sales or other dispositions of assets to third parties (not Holdings or any Subsidiary thereof), in addition to the sales or dispositions permitted by the foregoing clauses (a) through (n), for fair market value not to exceed $5,000,000 in a fiscal year of the Borrower or $25,000,000 in the aggregate since the Effective Date; provided, however, that the Net Sale Proceeds therefrom are applied to the repayment of outstanding Loans to the extent required by Section 2.5(j);
(o) the Credit Agreement Parties may enter into agreements to effect transactions which would result in a Change of Control on the terms and conditions set forth on Schedule XIII;
(p) the Borrower and its Subsidiaries may make the following sales and dispositions of Rental Equipment if in the ordinary course of business: (i) if any Rental Equipment is being moved in the ordinary course of business from the United States of America or a State thereof to Canada or a Qualified Canadian Jurisdiction (for use in said jurisdiction)), the Borrower or the respective Qualified Credit Party which owns such Rental Equipment may sell or transfer the respective Rental Equipment to a Canadian Subsidiary Guarantor, (ii) no Default if any Rental Equipment is being moved in the ordinary course of business from Canada or Event a province thereof to the United States of Default exists at the time of such Permitted Acquisition America or will exist as a result State thereof, the respective Canadian Subsidiary which owns such Rental Equipment may sell or transfer the respective Rental Equipment to the Borrower (which shall transfer same to the Unit Subsidiary if, and to the extent, required by Section 7.18) or the Unit Subsidiary and (iii) all Non-Canadian Foreign Subsidiaries may sell or transfer assets to any other Non-Canadian Foreign Subsidiary which is a Wholly-Owned Subsidiary; and
(q) sales or contributions of Rental Equipment by the Borrower or any Domestic Subsidiary of the representations Borrower to Xxxxxxxx Scotsman Mexico, S. de X.X. de C.V. or WS Servicios de Mexico S. de X.X. de C.V. or their respective Subsidiaries (and warranties set forth contributions to such entities of accounts receivable resulting from such sales or forgiveness of such accounts receivable) in this Agreement are true an aggregate amount not to exceed $5,000,000 in any fiscal year of the Borrower. Notwithstanding anything to the contrary contained above, (x) in no event shall Holdings or the Borrower sell or otherwise dispose, or permit any of their respective Subsidiaries to sell or otherwise dispose, of any of their interests in any Subsidiary except as expressly permitted pursuant to preceding Section 8.1(c) and correct Section 8.6(i), (y) in all material respectsno event shall the Unit Subsidiary be merged with or into or consolidated with or into any other Person or be liquidated and (z) in no event shall the Unit Subsidiary transfer any Non-Qualified Units or any interest therein (except (i) for the sale or lease thereof pursuant to the Master Lease Agreements, both before and after giving effect to provided that in the case of any such Permitted Acquisitionsale the respective Non-Qualified Units are contemporaneously sold to a third party pursuant to Section 8.1(d) or (ii) pursuant to Section 8.1(q)) to Holdings, the Borrower or any of their other Subsidiaries or any other Person. To the extent the Required Lenders waive the provisions of this Section 8.1 with respect to the sale of any Collateral, or any Collateral is sold or transferred (ivby dividend, contribution or otherwise) as permitted by this Section 8.1, such Collateral in respect each case (so long as the Collateral is not being sold or transferred to Holdings (other than cash distributed to Holdings in accordance with the terms of each Permitted Acquisition (or of all Permitted Acquisitions closing on the same datethis Credit Agreement), Workflow shall have delivered the Borrower or any of the Borrower’s Domestic Subsidiaries or Canadian Subsidiaries and Section 2.5(j), to the Agent an officer's certificate executed by an Authorized Financial Officer of Workflow demonstrating (in reasonable detailextent applicable, is complied with as to such Collateral) that (A) on a pro forma basis determined as --- ----- if such Permitted Acquisition (shall be sold or Acquisitions) had been consummated on the first day transferred free and clear of the last Test Period Liens in favor of Workflow then ended (the Collateral Agent and assuming that any Indebtedness incurred, issued or assumed the Lenders created by the Collateral Documents and the Collateral Agent shall take such actions as it deems appropriate in connection therewith had been incurredor may be reasonably requested by the Borrower to evidence such Lien release, issued or assumed on in each case at 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 PeriodBorrower’s expense.
Appears in 1 contract
Samples: Credit Agreement (Williams Scotsman International Inc)
Consolidation, Merger, Sale or Purchase of Assets, etc. No Holdings and the Borrower ------------------------------------------------------- willwill not, nor and will any Borrower not permit any of its their respective Subsidiaries to, wind up, liquidate or dissolve its affairs affairs, or enter into any transaction of merger or consolidation, sell or conveyotherwise dispose of all or any part of its property or assets, sellor enter into any sale-leaseback transactions, or purchase, lease or otherwise dispose acquire (in one transaction or a series of (related transactions) all or any part of the property or assets of any Person or agree to do any of the foregoing at any future time) all or any part of its property or assets (other than sales of inventory and obsolete or worn-out equipment, in each case in the ordinary course of business), or enter into any partnerships, joint ventures or sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Consolidated (i) Capital Expenditures made by Workflow the Borrower and its Domestic Subsidiaries and Canadian Subsidiaries (including the purchase of assets in the form of additional Rental Equipment) to the extent within the limitations set forth in Section 8.4 and (ii) Capital Expenditures made by the Borrower's Non-Canadian Foreign Subsidiaries;
(b) the investments, acquisitions and transfers or dispositions of properties permitted pursuant to Section 8.5 and Dividends permitted pursuant to Section 8.6;
(i) any Domestic Subsidiary of the Borrower (excluding the Unit Subsidiary) may be merged or consolidated with or into, or be liquidated into, the Borrower or any Wholly-Owned Domestic Subsidiary of the Borrower (so long as the Borrower or such Wholly-Owned Domestic Subsidiary of the Borrower is the surviving corporation), or all or any part of the business, properties and assets of any Domestic Subsidiary (excluding the Unit Subsidiary) may be conveyed, leased, sold or transferred to the Borrower or any Wholly-Owned Domestic Subsidiary of the Borrower, (ii) any Canadian Subsidiary may be merged or consolidated with or into, or be liquidated into, any Wholly-Owned Canadian Subsidiary (so long as such Wholly-Owned Canadian Subsidiary is the surviving corporation), or all or any part of the business, properties and assets of any Canadian Subsidiary may be conveyed, leased, sold or transferred to any Wholly-Owned Canadian Subsidiary or to the Borrower, (iii) any Non-Canadian Foreign Subsidiary may be merged or consolidated with or into, or be liquidated into, any Non-Canadian Foreign Subsidiary that is a Wholly-Owned Subsidiary (so long as such Wholly-Owned Subsidiary is the surviving corporation), or all or any part of the business, properties and assets of any Non-Canadian Foreign Subsidiary may be conveyed, leased, sold or transferred to any Non-Canadian Foreign Subsidiary that is a Wholly-Owned Subsidiary and (iv) all or any part of the business, property and assets of any Foreign Subsidiary may be transferred (by way of Dividend) to the Borrower;
(d) the sale, lease or disposal to third parties (not in violation of Section 8.05, and Workflow and its Subsidiaries may enter into operating leases as lessee with respect to real Holdings or personal property any Subsidiary thereof) in the ordinary course of business of Inventory and otherwise Rental Equipment and the purchase, lease or other acquisition from third parties (not Holdings or any Subsidiary thereof) of equipment, Inventory and Rental Equipment in compliance the ordinary course of business;
(e) the sale or other disposition to third parties (not Holdings or any Subsidiary thereof) of obsolete or excess equipment in the ordinary course of business;
(f) operating leases (and other leases or subleases) of property entered into or terminated in the ordinary course of business; PROVIDED that to the extent that any such lease or sublease, as the case may be, constitutes a Capital Lease, such lease or sublease, as the case may be, shall be permitted to be entered into under this Section 8.1(f) only if also permitted to be entered into under Section 8.3(b);
(g) sales and leases to the Borrower of Non-Qualified Units from time to time held by the Unit Subsidiary pursuant to the Master Lease Agreements, PROVIDED that in the case of any such sale the respective Non-Qualified Units are contemporaneously sold to a third party as provided in Section 8.1(d);
(h) the sale or return of automobiles and trucks which the Borrower and its Subsidiaries customarily replace periodically with this Agreementsubstitute automobiles and trucks in the ordinary course of business;
(i) Workflow and the U.S. Borrower or any Subsidiary Guarantors (other than Specified Subsidiaries and any U.S. Subsidiary Guarantors that are not required to execute and delivermay, 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 permitted by Section 8.04(d);
(c) Investments permitted pursuant to Section 8.06;
(d) Workflow 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 enter into licensing agreements with Persons for the compromise use of intellectual property or collection thereof other intangible assets, and not as part of any financing transaction;
(e) Workflow settlements, permissions, consents to use, and its Subsidiaries may sell similar arrangements concerning intellectual property 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)other intangible assets, provided that the aggregate cash proceeds from all such sales pursuant to this -------- clause (e) shall not exceed, in the aggregate, $10,000,000 in any two consecutive fiscal year period of Workflow;
(f) the Credit Parties may acquire all or substantially all of the assets of any Acquired Business (or all or substantially all of the assets of a product line or division of any Acquired Business) or 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 agreements, settlements, permissions, consents and similar arrangements to which involves any BorrowerCredit Party is a party, such Credit Party uses reasonable commercial efforts to procure that each such license or other agreements is permitted to be assigned pursuant to the respective Security Agreement to which such Credit Party is a party and does not otherwise prohibit the granting of Lien therein by the respective Credit Party pursuant to such Security Agreement; PROVIDED, FURTHER, that notwithstanding anything to the contrary contained in this Section 8.1, the Borrower shall be permitted to license trade names and related intellectual property pursuant to the surviving corporationTrade Name License Agreement;
(j) the abandonment or other disposition of intellectual property and other property that is, in the reasonable judgment of the Person owning such intellectual property and other property, no longer economically practicable to maintain or useful in the conduct of the business of such Person;
(any such acquisition, a "Permitted Acquisition" and k) the date sale of consummation of any such Permitted Acquisition, an "Acquisition Date"), provided that (i) approximately 7 acres located at Jackson Road east of Route 73, Berlin, New Jersey, (ii) approximately 0 xxxxx xxxxxxx xx 0000 Xxxxxx Xxxx Xxxx, -106- Xxxxxxxxx, Xxxxxxxx xxx (xxx) xxxxxxxxxxxxx 0.0 xxxxx xxxxxxx xx 0000 Xxxxxxx Xxxxx, Xxxt Chicago, Illinois;
(l) in conxxxxxxx xxxx xxx xxxx xx xxx Xxxxxx Xxxxxxent to a third party as permitted by clause (d) above, the sum sale of Leases and conditional sales contracts relating to such Rental Equipment, in each case, in the -------- aggregate cash consideration plus the aggregate ordinary course of business for fair market value to third parties; PROVIDED that in no event is any such sale with any recourse to the seller of all other consideration paid by the Credit Parties such leases and/or conditional sales contracts except for (including any Indebtedness issued, incurred and/or assumed by the Credit Parties i) usual and any capital stock issued by Workflow, but excluding any amounts paid through an earn-out formula based on earnings) customary warranties in connection with any Permitted Acquisition shall not exceed $35,000,000 the sale of the respective Rental Equipment or (except that ii) guaranties the total consideration for each residual value 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 equal to $50,000,000 such Leases so long as least 90% the amount of such aggregate consideration shall consist guarantees 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 type described above in this clause (ii) (calculated taking the maximum potential liability thereunder) at no time outstanding exceeds $5,000,000 in the aggregate;
(m) any Permitted Acquisitions (so long as the applicable requirements set forth in the definition of "Permitted Acquisitions" and in Section 7.17 are satisfied);
(n) sales or other dispositions of assets to third parties (not Holdings or any Subsidiary thereof), in addition to the sales or dispositions permitted by the foregoing clauses (a) through (n), for fair market value not to exceed $3,000,000 in a fiscal year of Holdings or $15,000,000 in the aggregate since the Effective Date; PROVIDED, HOWEVER, that the Net Sale Proceeds therefrom are applied to the repayment of outstanding Loans to the extent required by Section 2.5(j);
(o) the Credit Agreement Parties may enter into agreements to effect transactions which would result in a Change of Control on the terms and conditions set forth on Schedule XIII; and
(p) the Borrower and its Subsidiaries may make the following sales and dispositions of Rental Equipment if in the ordinary course of business: (i) if any Rental Equipment is being moved in the ordinary course of business from the United States of America or a State thereof to Canada or a Qualified Canadian Jurisdiction (for use in said jurisdiction)), the Borrower or the respective Qualified Credit Party which owns such Rental Equipment may sell or transfer the respective Rental Equipment to a Canadian Subsidiary Guarantor, (ii) no Default if any Rental Equipment is being moved in the ordinary course of business from Canada or Event a province thereof to the United States of Default exists at the time of such Permitted Acquisition America or will exist as a result State thereof, the respective Canadian Subsidiary which owns such Rental Equipment may sell or transfer the respective Rental Equipment to the Borrower (which shall transfer same to the Unit Subsidiary if, and to the extent, required by Section 7.18) or the Unit Subsidiary and (iii) all Non-Canadian Foreign Subsidiaries may sell or transfer assets to any other Non-Canadian Foreign Subsidiary which is a Wholly-Owned Subsidiary. Notwithstanding anything to the contrary contained above, (x) in no event shall Holdings or the Borrower sell or otherwise dispose, or permit any of their respective Subsidiaries to sell or otherwise dispose, of any of their interests in any Subsidiary except as expressly permitted pursuant to preceding Sections 8.1(c), (y) in no event shall the Unit Subsidiary be merged with or into or consolidated with or into any other Person or be liquidated and (z) in no event shall the Unit Subsidiary transfer any Non-Qualified Units or any interest therein (except for the sale or lease thereof pursuant to the Master Lease Agreements, PROVIDED that in the case of any such sale the respective Non-Qualified Units are contemporaneously sold to a third party pursuant to Section 8.1(d)) to Holdings, the Borrower or any of their other Subsidiaries or any other Person. To the extent the Required Lenders waive the provisions of this Section 8.1 with respect to the sale of any Collateral, or any Collateral is sold as permitted by this Section 8.1, such Collateral in each case (so long as the Collateral is not being transferred to Holdings, the Borrower or any of their respective Subsidiaries) shall be sold free and clear of the representations and warranties set forth Liens in this Agreement are true and correct in all material respects, both before and after giving effect to any such Permitted 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 (A) on a pro forma basis determined as --- ----- if such Permitted Acquisition (or Acquisitions) had been consummated on the first day favor of the last Test Period of Workflow then ended (Collateral Agent and assuming that any Indebtedness incurred, issued or assumed the Lenders created by the Collateral Documents and the Collateral Agent shall take such actions as it deems appropriate in connection therewith had been incurredor may be reasonably requested by the Borrower to evidence such Lien release, issued or assumed on in each case at 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 PeriodBorrower's expense.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. No The Borrower ------------------------------------------------------- willwill not, nor will any the Borrower permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its property or assets (other than sales of inventory and obsolete or worn-out equipment, in each case in the ordinary course of business), or enter into any partnerships, joint ventures or sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Consolidated Capital Expenditures by Workflow and its Subsidiaries to the 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 personal property in the ordinary course of business and otherwise in compliance with this Agreement;
(i) 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 deliverGuarantors, and have not executed and delivered, the respective Security Documents), (iii) the Credit Parties may make intercompany loans to the extent permitted by Section 8.04(d);
(c) Investments permitted pursuant to Section 8.06;
(d) Workflow 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 and not as part of any financing transactionIntentionally Omitted;
(e) Workflow and its Subsidiaries may sell or otherwise dispose of the Specified Subsidiaries and other 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 Net Cash Proceeds from all such sales pursuant to this -------- clause (e) Asset Sales shall not exceed, prepay the Obligations as provided in the aggregate, $10,000,000 in any two consecutive fiscal year period of WorkflowSection 3.03 hereof;
(f) the Credit Parties Intentionally Omitted;
(g) (x) any Domestic Subsidiary of Workflow may acquire all be merged with or substantially all of the assets of any Acquired Business (or all or substantially all of the assets of a product line or division of any Acquired Business) or 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 isinto, or becomes at such timebe dissolved or liquidated, a Credit Party although in the case of into Workflow or 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")U.S. Subsidiary Guarantor, provided that (i) the sum of the -------- aggregate cash consideration plus the aggregate fair market value of all other consideration paid by the Credit Parties (including any Indebtedness issuedresulting entity must be a U.S. Subsidiary Guarantor unless such merger, incurred and/or assumed by the Credit Parties and any capital stock issued by dissolution or liquidation involves Workflow, but excluding any amounts paid through an earn-out formula based on earningsin which case Workflow must be the resulting entity, and (ii) in connection with any Permitted Acquisition shall not exceed $35,000,000 (except a Specified Subsidiary that the total consideration for each of two Permitted Acquisitions during the term of this Agreement is a Domestic Subsidiary may be up to $50,000,000)merged with or into, provided that the Credit parties may consummate Permitted Acquisitions in which -------- the aggregate consideration is greater than $35,000,000 but less than or equal to $50,000,000 be dissolved or liquidated into, a U.S. Subsidiary Guarantor so long as least 90% of the Indebtedness (if any) of, and/or Liens (if any) on the property of, such aggregate consideration shall consist of non-redeemable common stock and/or Qualified Preferred Stock of Workflow (although Specified Subsidiary would be permitted to be incurred by such Subsidiary Guarantor under 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) no Default or Event of Default exists provisions hereof at the time of such Permitted Acquisition merger, dissolution or will exist 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 such merger, dissolution or liquidation involves DBF, DBF must be the resulting 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) the Indebtedness (if any) of, and/or Liens (if any) and 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 such merger, dissolution or liquidation and (y) the resulting entity must be a result thereofCanadian Credit Party and in the event that any such merger, dissolution or liquidation involves DBF, DBF must be the resulting entity, and (iii) all if any stock of any Foreign Subsidiary involved in such merger, dissolution or liquidation was pledged under the U.S. Pledge Agreement prior to such merger, dissolution or liquidation, 100% of the representations and warranties set forth in this Agreement are true and correct in all material respects, both before and after giving effect to any such Permitted Acquisition, (iv) in respect of each Permitted Acquisition (or total combined voting power of all Permitted Acquisitions closing on classes of capital stock of the same date)surviving Foreign Subsidiary, Workflow and 100% of all other classes of capital stock of such surviving Foreign Subsidiary in each case shall have delivered be pledged pursuant to the Agent an officer's certificate executed by an Authorized Financial Officer U.S. Pledge Agreement; and
(h) each of Workflow demonstrating (in reasonable detail) that (A) on a pro forma basis determined as --- ----- if such Permitted Acquisition (and its Subsidiaries may grant leases or Acquisitions) had been consummated on subleases to other Persons not materially interfering with the first day conduct of the last Test Period business of Workflow then ended (and assuming that or 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 Periodof its Subsidiaries.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. No The Borrower ------------------------------------------------------- willwill not, nor and will any Borrower not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs affairs, or enter into any transaction of merger or consolidation, or convey, sell, lease or otherwise dispose of (or agree to do any of the foregoing at any future time) all or any part of its property or assets (other than sales inventory or obsolete equipment or excess equipment no longer needed in the conduct of inventory and obsolete or worn-out equipment, in each case the business in the ordinary course of business)) or purchase, or enter into any partnerships, joint ventures or sale-leaseback transactions, or purchase lease or otherwise acquire (in one all or a series of related transactions) any part of the property or assets of any Person (other than purchases or other acquisitions of inventory, leases, materials and equipment in the ordinary course of business) or agree to do any of the foregoing at any Personfuture time without a contingency relating to obtaining any required approval hereunder, except that the following shall be permitted:
(a) (i) any Subsidiary of the Borrower, including any Subsidiary Guarantor, may be merged or consolidated with or into, or be dissolved and liquidated into, the Borrower or a Subsidiary Guarantor (so long as (x) in the case of a merger or consolidation, the Borrower or such Subsidiary Guarantor is the surviving corporation, and (y) in the case of a liquidation, (1) all of the assets of such Subsidiary are distributed to the Borrower or a Subsidiary Guarantor, (2) all of the assets of such Subsidiary are at all times subject to the Liens under the Security Documents, and (3) neither the Borrower nor any Subsidiary Guarantor assumes any material liabilities or obligations as a result of such liquidation), or all or any part of such Subsidiary's business, properties and assets may be conveyed, sold or transferred to the Borrower or any Subsidiary Guarantor, and (ii) any Subsidiary that is not a Subsidiary Guarantor may be merged or consolidated with or into, or convey, sell or transfer its assets to, another Subsidiary that is not a Subsidiary Guarantor; PROVIDED that if the stock of either such Person was pledged pursuant to the Pledge Agreement the stock of the surviving entity or the transferee entity, as the case may be, shall also be pledged pursuant to the Pledge Agreement;
(b) Consolidated Capital Expenditures by Workflow permitted pursuant to Section 9.11;
(c) the investments, acquisitions and its Subsidiaries transfers or dispositions of properties permitted pursuant to Section 9.05;
(d) each of the extent not in violation Borrower and any Subsidiary of Section 8.05, and Workflow and its Subsidiaries the Borrower may enter into operating leases lease (as lessee with respect to lessee) real or personal property in the ordinary course of business and otherwise in compliance with this Agreement;
(i) Workflow and the U.S. Subsidiary Guarantors (other than Specified Subsidiaries and any U.S. Subsidiary Guarantors that are so long as such lease does 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 permitted by Section 8.04(dcreate a Capitalized Lease Obligation);
(ce) Investments permitted pursuant to Section 8.06;
(d) Workflow licenses or sublicenses by the Borrower and its Subsidiaries may sell or discount, in each case without recourse, accounts receivables arising of intellectual property in the ordinary course of business, but only in connection ; PROVIDED that such licenses or sublicenses shall not interfere with the compromise business of the Borrower or collection thereof and not as part any Subsidiary 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 sales pursuant to this -------- clause (e) shall not exceed, in the aggregate, $10,000,000 in any two consecutive fiscal year period of WorkflowBorrower;
(f) leases and subleases permitted under Section 9.03(f);
(g) the Credit Parties Borrower may acquire sell Choice One Stock in accordance with Section 8.11; and
(h) each of the Borrower and any Subsidiary of the Borrower may sell all or substantially all of the assets of any Acquired Business (or all or substantially all of the assets of a product line or division of any Acquired Business) or 100% of the capital stock of any Acquired Business (including by merger of the Acquired Long Distance Business with a Credit Party so long as the survivor prior written consent 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 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 equal to $50,000,000 so long as least 90% of such aggregate consideration shall 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) no Default or Event of Default exists at the time of such Permitted Acquisition or will exist as a result thereof, (iii) all of the representations and warranties set forth in this Agreement are true and correct in all material respects, both before and after giving effect to any such Permitted 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 (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 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 PeriodRequired Lenders.
Appears in 1 contract
Consolidation, Merger, Sale or Purchase of Assets, etc. No The Borrower ------------------------------------------------------- willwill not, nor and will any Borrower not permit any of its Subsidiaries to, wind up, liquidate or dissolve its affairs affairs, or enter into any transaction of merger or consolidation, or conveysell or otherwise dispose of any of its property or assets (including the sale of capital stock of any of its Subsidiaries, sellbut excluding any sale or disposition of property or assets in the ordinary course of business), or purchase, lease or otherwise dispose acquire (in one transaction or a series of related transactions) all or any part of the property or assets of any Person (excluding any purchases, leases or other acquisitions of property or assets in, and for use in, the ordinary course of business) or agree to do any of the foregoing at any future time) all or any part of its property or assets (other than sales of inventory and obsolete or worn-out equipment, in each case in the ordinary course of business), or enter into any partnerships, joint ventures or sale-leaseback transactions, or purchase or otherwise acquire (in one or a series of related transactions) any part of the property or assets (other than purchases or other acquisitions of inventory, materials and equipment in the ordinary course of business) of any Person, except that the following shall be permitted:
(a) Consolidated The Transaction;
(b) Capital Expenditures by Workflow the Borrower and its Subsidiaries to the extent not in violation permitted by Section 7.05;
(c) The investments, acquisitions and transfers or dispositions of property permitted pursuant to Section 8.057.06;
(d) The merger or consolidation or liquidation of any Wholly-Owned Subsidiary of the Borrower with or into another Wholly-Owned Subsidiary of the Borrower, and Workflow and PROVIDED that no Subsidiary may merge, consolidate or liquidate with or into SNCHC or any of its Subsidiaries Subsidiaries;
(e) Any Regulated Insurance Company may enter into operating leases as lessee with respect to real any Insurance Contract, Reinsurance Agreement or personal property Retrocession Agreement in the ordinary course of business in accordance with its normal underwriting, indemnity and retention policies, PROVIDED that, except as provided below, no Regulated Insurance Company shall enter into any Financial Reinsurance Agreements after the Initial Borrowing Date, PROVIDED FURTHER, that Regulated Insurance Companies may enter into Financial Reinsurance Agreements constituting loss portfolio transfers and/or retrospective aggregate excess of loss reinsurance contracts so long as (i) the aggregate annual premiums associated with such Financial Reinsurance Agreements entered into by all Regulated Insurance Companies shall not exceed $10,000,000 and (ii) such Financial Reinsurance Agreements do not meet the conditions for reinsurance accounting as provided in FASB 113 solely because they relate to losses incurred in prior years;
(f) The Borrower or any of its Subsidiaries may enter into leases of property or assets in the ordinary course of business not otherwise in compliance with violation of this Agreement;
(ig) Workflow and each of 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 permitted by Section 8.04(d);
(c) Investments permitted pursuant to Section 8.06;
(d) Workflow 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 and not as part of any financing transaction;
(e) Workflow and its Subsidiaries may sell or otherwise dispose of assets (including including, without limitation, the capital stock of BIC acquired pursuant to a sale-leaseback transactionthe Acquisition), PROVIDED that (w) each such sale shall be for cash and an amount at least equal to the fair market value thereof (as determined in good faith by Workflow or such Subsidiarysenior management of the Borrower), provided that (x) each such sale results in consideration in the form of cash, (y) the aggregate cash sale proceeds from all assets subject to such sales pursuant to this -------- clause (eg) in any fiscal year shall not exceed, in the aggregate, $10,000,000 in any two consecutive fiscal year period of Workflow;
(f) the Credit Parties may acquire all or substantially all of the assets of any Acquired Business (or all or substantially all of the assets of a product line or division of any Acquired Business) or 100exceed 10% of the capital stock of any Acquired Business (including by merger Consolidated Net Worth of the Acquired Business with a Credit Party so long Borrower as of the survivor first day 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"), fiscal year provided that (i) on a PRO FORMA basis (the sum of the -------- aggregate cash consideration plus the aggregate fair market value of all other consideration paid PRO FORMA adjustments made 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 Borrower pursuant 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 equal to $50,000,000 so long as least 90% of such aggregate consideration shall consist of non-redeemable common stock and/or Qualified Preferred Stock of Workflow (although the proviso contained in this clause (i) shall not apply be subject to the two $50,000,000 Permitted Acquisitions referred to above in this clause (i)), (ii) no Default or Event of Default exists at the time of such Permitted Acquisition or will exist as a result thereof, (iii) all reasonable satisfaction of the representations and warranties set forth in this Agreement are true and correct in all material respects, both before and after giving effect to any such Permitted Acquisition, (ivAdministrative Agent) 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) asset sale had been consummated on the first date occurring twelve months prior to the last day of the last Test Period most recently ended fiscal quarter of Workflow then ended (the Borrower with respect to any asset sale, the Borrower 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 its Subsidiaries would have been in compliance with Sections 8.09 7.10 through 7.13 of this Agreement as of, or for the relevant period ended on, the last day of such fiscal quarter and 8.10 (ii) on a PRO FORMA basis (the PRO FORMA adjustments made by the Borrower pursuant to this clause (ii) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such asset sale had been consummated, the covenants contained in Sections 7.10 through 7.13 will continue to be met for the twelve-month period following the last day of the fiscal quarter ended after the date of the consummation of such Test Periodasset sale and (z) to the extent required by Section 3.02(i)(b), the Net Available Proceeds therefrom are applied to repay Loans as provided in Section 3.02(i)(b);
(h) the Asset Restructuring Transaction; and
(i) so long as no Default or Event of Default then exists or would result therefrom, the Borrower and its Subsidiaries may acquire assets or the capital stock of any Person (any such acquisitions permitted by this clause (i), a "Permitted Acquisition"), PROVIDED, that (i) such Person (or the assets so acquired) was, immediately prior to such acquisition, engaged (or used) primarily in the businesses permitted pursuant to Section 7.01(a), (ii) each such acquisition shall be for an amount not greater than the fair market value thereof (as determined in good faith by the Board of Directors of the Borrower), (iii) the aggregate amount expended by the Borrower and its Subsidiaries for Permitted Acquisitions shall not in any fiscal year exceed 10% of the Consolidated Net Worth of the Borrower and its Subsidiaries as of the first day of such fiscal year, (iv) on a PRO FORMA basis (the PRO FORMA adjustments made by the Borrower pursuant to this clause (iv) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such acquisition had been consummated on the date occurring twelve months prior to the last day of the most recently ended fiscal quarter of the Borrower, the Borrower and its Subsidiaries would have been in compliance with Sections 7.10 through 7.13 of this Agreement as of, or for the relevant period ended on, the last day of such fiscal quarter, (v) on a PRO FORMA basis (the PRO FORMA adjustments made by the Borrower pursuant to this clause (v) shall be subject to the reasonable satisfaction of the Administrative Agent) determined as if such acquisition had been consummated, the covenants contained in Sections 7.10 through 7.13 will continue to be met for the twelve-month period following the last day of the fiscal quarter ended after the date of the consummation of such acquisition and (vi) no such acquisition shall be consummated on a "hostile" basis (I.E., without the consent of the Board of Directors of the Person to be acquired). To the extent the Required Banks (or all the Banks to the extent required by Section 11.12) waive the provisions of this Section 7.02 with respect to the disposition of any Collateral, or any Collateral is disposed of as permitted by this Section 7.02, (i) such Collateral in each case shall be sold free and clear of the Liens in favor of the Secured Creditors created by the Pledge Agreement and (ii) if such Collateral includes all of the capital stock of a Subsidiary, such capital stock shall be released from the Pledge Agreement and such Subsidiary shall be released from the Subsidiary Guaranty; and the Administrative Agent and the Collateral Agent shall be authorized to take such actions as the Administrative Agent or the Collateral Agent reasonably deems appropriate in connection therewith.
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Samples: Credit Agreement (Superior National Insurance Group Inc)
